I 


: 


THE  RELATION  OF  THE  EXECUTIVE 
POWER- TO  LEGISLATION 


BY 

HENRY  CAMPBELL  BLACK,  LL.D. 

EDITOR  OF  THE  CONSTITUTIONAL  REVIEW 


PRINCETON  UNIVERSITY  PRESS 
PEINCETON 

LONDON :  HUMPHREY  MILFORD 

OXFORD  UNIVERSITY  PRESS 

1919 


< 


Copyright,  1919,  by 

PRINCETON  UNIVERSITY  PRESS 

Princeton,  N.  J. 

Published,  1919 
Printed  in  the  United  States  of  America 


CONTENTS 

I.     The  Growth  of  Executive  Power i 

II.     Executive      Initiative      in      Legislation; 

Abroad 41 

III.  Executive  Initiative  in  Legislation ;  In  the 

United  States 55 

IV.  The  Cabinet  in  Congress 79 

V.     The  Selective  or  Partial  Veto 101 

VI.     Executive  Orders  and  Decrees 116 

VII.     Executive  Power  in  the  States 149 

VIII.     Summary  and  Conclusion 181 


40571 


PREFACE 

The  framers  of  the  Constitution  of  the  United 
States  and  of  the  contemporary  state  constitutions 
firmly  believed  that  the  preservation  of  liberty  re- 
quired a  careful  separation  and  delimitation  of  pow- 
ers between  the  three  great  branches  or  departments 
of  government,  and  made  provision  accordingly.  In 
one  respect,  at  least,  their  expectations  have  been  frus- 
trated and  their  plans  have  gone  awry.  For  a  survey 
of  the  course  of  our  political  history  and  of  the  de- 
velopment of  political  forces  and  methods  shows  that, 
as  between  the  executive  authority  and  the  legislative 
power,  the  balance  originally  intended  to  be  main- 
tained has,  both  in  the  Union  and  the  states,  been  very 
gravely  disturbed..  The  President  of  the  United  Stated 
has  grown  into  a  position  of  overmastering  influence 
over  the  legislative  department  of  the  government. 
He  presents  and  procures  the  enactment  of  such  meas- 
ures as  he  desires,  and  prevents  the  passage  of  those 
which  he  disapproves.  Congress  is  subservient  to  his 
\will;  its  independence  is  in  eclipse/  On  the  other  hand, 
many  of  the  state  governments  are  working  ineffec- 
tively, and  the  states  are  losing  their  rightful  jurisdic- 
tion and  influence  in  our  federated  government,  chiefly 
because  they  have  stripped  their  governors  of  much 
of  the  authority  which  their  responsibility  to  public 
and  political  opinion  properly  demands. 


vi  PREFACE 

There  are  those  who  tell  us  that  the  political  philos- 
ophy of  the  founders  of  the  Republic  is  unsuited  to  a 
twentieth-century  world,  that  what  they  regarded  as  a 
self-evident  truth  is  now  seen  to  be  only  a  fetish.  If 
we  are  not  prepared  to  reject  the  theory  of  the  separa- 
tion of  powers,  we  should  endeayor  by  all  means  to  re- 
store the  lost  equipoise,  and  to  regain  the  ancient  paths 
of  ordered  liberty  under  representative  government. 
But  if  the  new  view  is  correct,  or  if  it  is  true  that  ex- 
ecutive arrogation  of  power  is  the  result  of  forces 
operating  irresistibly  in  the  life  of  the  nation,  or  the 
outcome  of  an  evolutionary  process  which  cannot  now 
be  reversed,  then  it  becomes  us  to  ask  ourselves  what 
we  mean  to  do  with  our  new  form  of  government. 

In  this  dilemma,  we  get  but  little  light  from  the  in- 
stitutions of  other  countries.  An  examination  of  the 
so-called  "parliamentary"  or  "cabinet"  system  shows 
it  to  be  entirely  unadapted  to  the  government  of  a 
country  whose  constitution  provides  its  executive  with 
a  fixed  tenure  of  office.  But  the  fact  is  patent  that 
there  has  insensibly  grown  up  aiound  the  Constitution 
a  system  of  usages  and  conventions,  which  is  only  par- 
tially within  its  cognizance,  and  which  is  very  largely 
a  matter  of  make-believe.  The  question  is  propounded 
in  these  pages  whether  we  cannot  take  this  system  (if 
indeed  its  continuance  is  inevitable)  and  put  it  where 
it  belongs — squarely  within  the  four  corners  of  the 
Constitution.  Suggestions  are  offered  in  that  behalf. 
It  is  not  pretended  that  they  furnish  the  ideal  solution 
of  a  very  serious  and  difficult  problem.  But  at  least 
they  would  legalize  that  which  is  at  best  extra-consti- 
tutional, deliver  the  supreme  law  of  the  land  from  a 


PREFACE  vii 

mocking  pretense  of  obedience,  and  liberate  the  most 
important  function  of  a  free  country's  government — 
the  making  of  its  laws — from  an  atmosphere  of  shams 
and  subterfuge. 

HENRY  CAMPBELL  BLACK. 
Washington,  D.  C. 


THE  GROWTH  OF  EXECUTIVE  POWER 

The  most  portentous  development  in  American  po- 
litical and  constitutional  history  ^ince  1865  is  the 
change  in  the  relations  between  th^  executive  and 
legislative  branches  of  government,  the  one  making 
enormous  gains  in  the  direction  of  influence  and  actual 
power,  the  other  suffering  a  corresponding  decline  in 
prestige  and  in  its  control  over  the  processes  of  gov- 
ernment. \  The  President  of  the  United  States  occu- 
pies today  a  position  of  leadership  and  of  command 
over  the  government  of  the  country  so  different  from 
that  which  was  intended  by  the  framers  of  the  Con- 
stitution that,  if  it  were  not  the  outcome  of  a  natural 
process  of  evolution  working  through  a  long  period  of 
years,  it  would  bear  the  stigmata  of  revolution,  and  if 
it  had  been  achieved  in  a  single  presidential  term,  it 
would  have  been  denounced  as  a  coup  d'etatJ} 

The  men  of  the  convention  of  1787  were  scrupu- 
lously anxious  to  separate  the  three  great  functions  of 
government  in  fact  as  well  as  in  theory.  And  hence 
the  first  article  of  the  Constitution  begins  with  the 
words  "all  legislative  powers  herein  granted  shall  be 
vested  in  a  Congress  of  the  United  States/'  and  the 
second  with  the  words  "the  executive  power  shall  be 
vested  in  a  President  of  the  United  States."  But 
while  they  meant  to  keep  the  chief  magistrate  from 


..REIATJON.'OF   EXECUTIVE 

c'oritrbliihg' legislation  and  the  lawmaking  body  from 
interfering  with  properly  executive  functions  (except 
as  otherwise  specified  in  the  Constitution)  there  can 
be  no  doubt  that  it  was  likewise  their  intention  that 
the  Congress  should  be  the  predominant  power  in  the 
state,  the  guardian  of  the  public  welfare,  and  the  ulti- 
mate repository  of  sovereignty.  With  few  exceptions, 
even  if  notable  ones,*  the  statesmen  of  that  day  ab- 
horred the  idea  of  executive  control.  <$  The  personal 
traits  and  behavior  of  George  III  had  no  doubt  much 
to  do  with  this.  Also  the  wide  powers  vested  in  some 
colonial  governors  and  the  tyrannical  manner  of  their 
exercise  had  inspired  them  with  a  bitter  distrust  of  • 
one-man  power. «  But  more  than  this,  their  practical 
good  sense  enabled  them  to  perceive  that  the  mythical 
divinity  hedging  about  an  English  king  would  dissolve 
into  absurdity  if  applied  to  the  officer  whom  they 
meant  to  place  at  the  head  of  the  executive  department 
of  the  American  system.  That  the  titular  head  of  the 
state  never  dies,  that  he  can  do  no  wrong,  that  his 
crimes  against  the  liberties  of  the  people,  or  even 
against  one  person,  must  be  shouldered  by  some  re- 
sponsible minister,  these  are  fictions  necessary  perhaps 
to  maintain  a  monarchy  in  a  free  country,  t  But  the 
President  of  the  United  States  was  not  to  be*a  sover- 
eign nor  a  ruler.  He  was  to  be  a  public  agent,  with 
considerable  discretion,  it  is  true,  but  only  within  the 
bounds  of  defined  powers.  Hence  he  was  to  be  hedged 
about  with  law  and  amenable  to  law.  And  the  original 
conception  of  the  presidency  involved  a  further  idea, 
which  is  of  special  interest  in  this  inquiry.  The  in- 
cumbent of  that  office  was  to  be  independent  of  con- 


POWER   TO    LEGISLATION  3 

gressional  dictation  in  the  carrying  out  of  the  powers 
and  duties  laid  upon  him  by  the  Constitution.  *He  was 
not  to  be  the  servant  of  Congress ;  but  yet  he  was  to  be 
in  large  measure  its  agent.  •  For  the  political  overlord- 
ship  was  conceived  as  vested  in  that  body  which  was 
to  make  the  laws  which  the  'President  was  to  execute, 
that  body  which  was  to  create  departments  and  offices, 
prescribe  rules  for  conducting  the  public  business,  and 
generally,  by  its  action  or  refusal  to  act  on  legislative 
proposals,  to  determine  all  matters  of  national  policy.* 
>  It  has  been  well  remarked  that  the  authors  of  the 
federal  Constitution  "planned  a  chief  magistrate,  non- 
partisan,  calm,  and  aloof  from  the  throbbing  political 
questions  that  might  agitate  the  legislative  branch  of 
the  government.  Above  the  turmoil  of  political  par- 
ties, the  President  was  dispassionately  to  carry  out  the 
laws  in  much  the  same  non-political  manner  as  the 
Chief  Justice  was  to  head  the  judiciary."1^  /"The 
makers  of  the  Constitution,"  said  Woodrow  Wilson  in 
1908,  "seem  to  have  thought  of  the  President  as  what 
the  stricter  Whig  theorists  wished  the  king  to  be: 
only  the  legal  executive,  the  presiding  and  guiding 
authority  in  the  application  of  the  law  and  the  execu- 
tion of  policy.  His  veto  upon  legislation  was  only  his 
'check'  on  Congress — was  a  power  of  restraint,  not 
of  guidance.  He  was  empowered  to  prevent  bad  laws, 
but  he  was  not  to  be  given  an  opportunity  to  makei 
good  ones."2 /Many  of  the  members  of  that  conven- 
tion  must  have  shared  the  views  of  Roger  Sherman, 
who  did  not  hesitate  to  avow  that  "he  considered  the 

1  Hill,  "The  Federal  Executive,"  p.  9. 

2  "Constitutional  Government  in  the  United  States/'  p.  59. 


4  RELATION   OF   EXECUTIVE 

:  executive  magistracy  as  nothing  more  than  an  insti- 

I  tution  for  carrying  the  will  of  the  legislature  into  ef- 

1   feet,"  and  who  even  thought  that  the  President  "ought 

to  be  appointed  by  and  accountable  to  the  legislature 

only,  which  was  the  depository  of  the  supreme  will  of 

the  society. " 

Plans  for  the  election  of  the  President  by  one  or 
both  houses  of  the  legislative  body  did  not  prevail  in 
the  convention,  save  as  to  the  exceptional  case  when 
the  choice  might  devolve  upon  the  House  of  Repre- 
sentatives ;  and  it  may  be  conceded  that  he  was  finally 
granted  a  larger  measure  of  actual  power  in  the  gov- 
ernment of  the  nation  than  was  acceptable  to  a  group 
of  extremists  in  the  convention.  Still  it  is  evident  that 
the  prevailing  conception  of  the  presidential  office  at 
fKaFTIme  made  the  chief  magistrate  bill  little  iiioie 
than  an  "institution  for  carrying  the  will  of  the  legis- 
lature  into  effect."  And  it  was  thought  that  the  pow- 
'^rs^anH^respohsibilities  of  these  two  branches  of  the 
government,  as  over  against  each  other,  had  been  un- 
alterably determined  by  the  explicit  language  of  the 
Constitution. 

•$For  example,  the  President  was  given  a  veto  upon 
acts  of  legislation.  But  it  wras  not  absolute;  it  was 
rather  suspensive  and  meant  to  force  reconsideration 
of  the  bill  in  question;  and  it  was  ineffectual  in  the 
face  of  a  two-thirds  majority.  And  the  opinion  was 
long  held  that  the  veto  power  was  intended  to  be  ex- 
ercised only  in  self-defense,  that  is,  as  a  means  of  re- 
sisting encroachments  by  the  legislature  upon  the 
prerogatives  of  the  President,  and  not  to  make  him  a 
partner  in  judging  the  expedience,  policy,  or  necessity 


POWER   TO    LEGISLATION  5 

of  what  the  Congress  might  enact.  He  was  made  the 
commander  in  chief.  But  in  the  early  view  this  was  a 
military  rank,  not  a  political  office;  and  the  authority 
was  carefully  reserved  to  Congress  to  declare  war,  to 
raise  and  support  armies  and  a  navy,  and  to  make  the 
rules  for  the  government  and  regulation  of  the  forces. 
The  President  was  given  the  power  to  make  treaties 
and  to  appoint  the  non-elective  officers  of  government. 
But  not  on  his  sole  responsibility.  The  exercise  of 
either  of  these  executive  functions  was  predicated 
upon  the  advice  and  consent  of  the  Senate.  His  was 
the  authority  to  receive  ambassadors  and  other  public 
ministers,  but  the  contemporary  view  was  that  this 
was  more  a  matter  of  dignity  than  of  authority.  It 
was  made  his  duty  to  "recommend"  to  the  Congress 
such  measures  as  he  should  judge  necessary  and  ex- 
pedient, but  no  corresponding  obligation  rested  upon 
the  legislature  to  pay  any  heed  whatever  to  his  recom- 
mendations. The  framers  of  the  Constitution  very 
carefully  abstained  from  giving  him  any  power  to 
dissolve  or  prorogue  a  session  of  Congress.  It  is 
simply  within  his  power,  in  case  of  a  disagreement  be- 
tween the  two  houses  as  to  the  time  of  adjournment, 
to  "adjourn  them  to  such  time  as  he  shall  think 
proper."  Finally,  and  most  important  of  all,  the 
President  has  no  constitutional  means  of  getting  rid  of 
Senators  or  Representatives  who  oppose  him.  Should 
he  be  confronted  with  a  hostile  majority  of  two-thirds 
in  both  houses,  he  is  impotent  to  check  the  course  of 
legislation,  however  disastrous  he  may  believe  it  to 
be,  however  contrary  to  the  dictates  of  sound  policy 
or  ruinous  to  the  best  interests  of  the  nation.  In  the 


6  RELATION    OF   EXECUTIVE 

case  supposed  his  veto  would  be  ineffectual  and  he 
could  not  dissolve  the  session.  His  only  recourse 
would  be  an  appeal  to  public  opinion.  But  rhetoric 
may  be  persuasive,  but  it  is  not  coercive ;  and  it  could 
have  no  effect  until  the  next  elections.  On  the  other 
hand,  a  President  who  is  believed  guilty  of  such  mal- 
feasance in  his  office  as  may  constitute  a  high  crime  or 
misdemeanor  may  be  impeached  by  a  majority  vote  of 
the  House,  convicted  by  a  vote  of  "two-thirds  of  the 
members  present"  in  the  Senate,  and  removed  from 
office. 

Of  course  there  were  members  of  the  constitutional 
convention  and  other  'publicists  of  that  generation 
who  took  a  different  view  of  the  presidential  office, 
who  would  not  subscribe  to  the  doctrine  which  made 
the  legislative  branch  the  supreme  authority  in  the 
state  and  the  "depository  of  the  supreme  will  of  the 
society,"  and  who  claimed  that  any  residuum  of,  gov- 
ernmental power  left  undefined  by  the  Constitution 
might  be  claimed  for  the  President.  They  found  op- 
portunity for  the  expression  of  their  opinions  before 
the  government  had  been  five  years  in  operation. 
Washington's  proclamation  of  neutrality  in  1793  was 
fiercely  attacked  as  a  usurpation  of  power  belonging  to 
Congress.  Alexander  Hamilton  came  forward  in  its 
defense,  writing,  under  the  name  "Pacificus,"  a  series 
of  letters  in  the  public  press,  in  the  first  of  which  the 
following  passages  occur : 

"The  second  article  of  the  Constitution  of  the  United 
States,  section  first,  establishes  this  general  proposition, 
that  'the  executive  power  shall  be  vested  in  a  President 
of  the  United  States  of  America/  The  same  article  in  a 


POWER   TO    LEGISLATION  7 

succeeding  section,  proceeds  to  delineate  particular  cases 
of  executive  power.  It  declares,  among  other  things, 
that  the  President  shall  be  commander  in  chief  of  the 
army  and  navy  of  the  United  States  and  of  the  militia 
of  the  several  states  when  called  into  the  actual  service 
of  the  United  States ;  that  he  shall  have  power,  by  and 
with  the  advice  and  consent  of  the  Senate,  to  make 
treaties ;  that  it  shall  be  his  duty  to  receive  ambassadors 
and  other  public  ministers,  and  to  take  care  that  the  laws 
be  faithfully  executed. 

"It  would  not  consist  with  the  rules  of  sound  con- 
struction to  consider  this  enumeration  of  particular  au- 
thorities as  derogating  from  the  more  comprehensive 
grant  in  the  general  clause,  further  than  as  it  may  be 
coupled  with  express  restrictions  or  limitations,  as  in 
regard  to  the  co-operation  of  the  Senate,  in  the  appoint- 
ment of  officers  and  the  making  of  treaties,  which  are 
plainly  qualifications  of  the  general  executive  powers  of 
appointing  officers  and  making  treaties.  The  difficulty  of 
a  complete  enumeration  of  all  the  cases  of  executive 
authority  would  naturally  dictate  the  use  of  general  terms, 
and  would  render  it  improbable  that  a  specification  of 
certain  particulars  was  designed  as  a  substitute  for  those 
terms  when  antecedently  used.  The  different  mode  of 
expression  employed  in  the  Constitution,  in  regard  to 
the  two  powers,  the  legislative  and  the  executive,  serves 
to  confirm  this  inference.  In  the  article  which  gives  the 
legislative  powers  of  the  government,  the  expressions  are 
'all  legislative  powers  herein  granted  shall  be  vested  in  a 
Congress  of  the  United  States.'  In  that  which  grants  the 
executive  power,  the  expressions  are  'the  executive  power 
shall  be  vested  in  a  President  of  the  United  States.' 

"The  enumeration  ought  therefore  to  be  considered  as 
intended  merely  to  specify  the  principal  articles  implied 
in  the  definition  of  executive  power,  leaving  the  rest  to 
flow  from  the  general  grant  of  that  power,  interpreted  in 
conformity  with  other  parts  of  the  Constitution  and  with 
the  principles  of  free  government.  The  general  doctrine 
of  our  Constitution  then  is  that  the  executive  power  of 
the  nation  is  vested  in  the  President,  subject  only  to  the 
exceptions  and  qualifications  which  are  expressed  in  the 
instrument." 


8  RELATION   OF   EXECUTIVE 

r 

Notwithstanding  the  severe  perturbation  of  Jeffer- 
son and  an  inconclusive  attempt  on  the  part  of  Madi- 
son to  reply  to  the  letters  of  "Pacificus,"  Hamilton's 
doctrine  prevailed  so  far  as  concerns  the  single  ques- 
tion of  the  President's  initiative  in  foreign  affairs. 
But  his  general  proposition — that  the  Constitution 
does  not  restrict  the  President  to  such  executive  acts 
as  it  expressly  authorizes,  but,  on  the  contrary,  grants 
him  a  general  executive  power  subject  only  to  specified 
limitations — soon  fell  into  oblivion,  and  we  hear  no 
more  of  it  as  a  matter  of  practical  constitutional  in- 
terpretation for  more  than  a  hundred  years,  in  fact, 
until  it  was  revived  and  vigorously  asserted  by  Presi- 
dent Roosevelt. 

But  from  the  foundation  of  the  government  there 
has  been  a  struggle  for  ascendancy  between  the  Presi- 
dent and  Congress,  between  the  ideas  of  Alexander 
Hamilton  and  those  of  Roger  Sherman.  This  con- 
test has  not  been  continuous,  but  it  has  been  recurrent. 
It  has  seldom  been  acute,  public,  and  conscious.  It 
was  so  during  the  brief  incumbency  of  Andrew  John- 
son. It  has  for  the  most  part,  however,  been  silent  and 
strategic.  Generally  the  conflict  has  been  waged  over 
matters  of  detail,  that  is,  over  the  fate  of  some  meas- 
ure, plan,  or  policy  advocated  on  the  one  side  and  op- 
posed on  the  other.  There  has  seldom,  if  ever,  been 
manifested  an  avowed  and  deliberate  purpose  on  either 
side  to  gain  and  hold  an  undisputed  position  of  leader- 
ship in  general  and  without  reference  to  the  issue  of 
some  specific  controversy.  And  the  fortunes  of  the 
contestants  have  varied  chiefly  in  direct  relation  to  two 
sets  of  circumstances.  First,  the  matter  of  personal 


POWER   TO    LEGISLATION  9 

force  and  character,  popularity,  and  prestige.  Ven- 
erated presidents,  vigorous  presidents,  and  popular 
presidents  have  been  able  to  impose  their  will  upon 
Congress.  Weak  presidents  have  been  bullied  by  Con- 
gress. Second,  external  situations,  chiefly  war  or  criti- 
cal foreign  relations,  which  have  momentarily  placed 
the  President  in  a  predominant  position.  A  survey  of 
American  history  will  show  the  continual  recrudescence 
of  this  struggle ;  and  it  will  show,  too,  a  decline  in  the 
power  of  the  President  to  a  point  where  he  seemed  to 
be  almost  completely  subjugated  by  Congress  and  in 
danger  of  becoming  little  more  than  an  executive  clerk, 
followed  by  a  reverse  process,  little  short  of  amazing, 
which  has  led  the  President  to  a  height  where  he  stands 
as  practically  the  master  of  Congress  and  the  leader, 
if  not  the  ruler,  of  the  nation. 

In  the  earliest  days  of  the  Republic  those  who  re- 
garded the  legislative  body  as  the  supreme  and  pre- 
dominant organ  of  government  found  themselves  con- 
fronted with  facts  which  would  not  square  with  their 
theories,  and  which  postponed  for  a  long  time  the 
eventual  triumph  of  their  ideas.  The  early  presidents, 
Washington,  Jefferson,  Madison,  and  perhaps  Monroe 
also,  were  men  of  altogether  too  much  force  of  char- 
acter, and  with  too  strong  a  following  throughout  the 
country,  to  allow  themselves  to  be  placed  in  a  subordi- 
nate position.  Washington  showed  himself  at  times 
disposed  to  take  a  very  high  hand  with  Congress.  Jef- 
ferson's plans  for  the  expansion  and  development  of 
the  country  did  not  wait  upon  congressional  initiative, 
nor  were  they  even  to  be  restrained  by  his  own  inter- 
pretation of  the  Constitution.  Madison  could  hardly 


io  RELATION    OF   EXECUTIVE 

be  described  as  a  masterful  man.  Yet  he,  in  common 
with  the  others,  even  without  the  aid  of  specially  fa- 
voring circumstances,  could  not  have  failed  to  make 
his  personal  influence  strongly  effective  in  the  councils 
of  the  nation.  But  there  were  circumstances,  in  the 
first  seven  administrations,  which  did  offer  special  and 
exceptional  opportunities  for  a  strong  president  to 
dominate  those  councils.  Such  circumstances  always 
arise  when  the  relations  of  the  country  with  foreign 
powers  become  embroiled  or  even  critical.  Washing- 
ton's neutrality  proclamation  in  1793  set  a  precedent 
for  the  claim  of  executive  control  over  the  international 
affairs  of  the  country  which  other  presidents  were  not 
slow  to  follow.  Diplomatic  business,  the  making  of 
treaties,  and  the  determination  of  policy  towards  other 
states  naturally  belong  to  the  executive  branch  of  the 
government,  since  it  is  that  branch  which  must  open 
or  receive,  and  conduct,  negotiations.  But  these  af- 
fairs are  often  of  such  momentous  consequence,  and 
often  the  subject  of  such  wide-spread  and  excited 
public  opinion,  that  the  president's  command  over 
them  makes  him,  at  least  for  the  time  being,  the  chief 
power  in  the  state  and  the  nation's  leader,  while  his 
successful  conduct  of  them  will  immensely  exalt  his 
popularity  and  prestige.  When  the  country  engages 
in  war,  there  comes  into  play  the  almost  unlimited 
power  of  the  President  as  commander  in  chief.  And 
moreover,  in  such  a  crisis  there  is  imperative  necessity 
for  the  concentration  of  authority  in  a  single  hand. 
Deliberative  bodies  are  not  fitted  for  the  secret  counsel, 
quick  decision,  and  immediate  action  which  such  exi- 
gencies demand.  There  is  therefore  always  a  tendency 


POWER   TO    LEGISLATION  11 

at  such  times  to  confide  much  to  the  discretion  of  the 
executive,  and  to  surrender  to  the  President  the  law- 
making  processes  of  the  government,  or  at  least,  by 
broad  general  enactments  to  vest  in  him  every  kind  of 
power  and  authority  which  he  judges  necessary  for  the 
successful  conduct  of  the  war. 

It  is  hence  not  at  all  difficult  to  account  for  the 
strength  of  the  executive  during  the  early  administra- 
tions (and  entirely  aside  from  the  personality  of  the 
men  who  filled  the  office),  when  we  recall  the  bitter 
disputes  with  England  and  the  difficulty  of  negotiating 
a  more  satisfactory  treaty,  the  efforts  to  stem  the  tide 
of  excited  but  dangerous  sympathy  with  the  principles 
of  the  French  Revolution,  the  subsequent  resentment 
against  the  arbitrary  actions  of  that  nation,  leading  to 
an  undeclared  but  active  little  naval  war  with  France, 
the  purchase  of  Louisiana  from  France  and  of  Flori- 
da from  Spain,  and  finally  the  War  of  1812. 

Andrew  Jackson,  possessing  the  will  and  temper  for 
command,  and  being  also  a  popular  military  hero,  was 
naturally  bound  to  strive  for  leadership  and  to  magnify 
the  authority  of  the  presidential  office.  In  this  he 
also,  like  some  of  his  predecessors,  was  helped  by  ex- 
traneous circumstances.  His  first  administration  wit- 
nessed threatening  storm  clouds  upon  the  international 
horizon.  Acrimonious  disputes  with  Great  Britain 
concerning  commercial  relations  with  her  colonies  and 
the  northern  boundary  of  Maine,  and  with  France 
about  the  payment  of  the  spoliation  claims,  more  than 
once  made  war  a  close  possibility.  In  domestic  affairs 
his  vigorous  personality  was  often  to  the  fore.  Presi- 
dent Wilson  aptly  describes  him  as  "an  imperious  man, 


12  RELATION   OF   EXECUTIVE 

bred  not  in  deliberative  assemblies  or  quiet  councils, 
but  in  the  field  and  upon  a  rough  frontier/'  and  says 
that  he  "worked  his  own  will  upon  affairs,  with  or 
without  formal  sanction  of  law,  sustained  by  a  clear 
undoubting  conscience  and  the  love  of  a  people  who 
had  grown  deeply  impatient  of  the  regime  he  had  sup- 
planted/' Though  often  bitterly  opposed  in  Congress, 
and  sometimes  defeated  there,  he  was  more  than  once 
able  to  bring  his  policies  to  success  by  sheer  personal 
force  and  astuteness,  the  most  notable  instance  being 
seen  in  his  assault  upon  the  Bank  of  the  United  States. 
Following  the  second  administration  of  Jackson 
there  ensued  a  period  of  a  quarter  century  during 
which  the  presidency  was  in  eclipse.  Notwithstand- 
ing the  episode  of  the  war  with  Mexico,  there  did  not 
once  occur  within  this  stretch  of  time  such  a  combina- 
tion of  circumstances  as  would  enable  a  President  to 
dominate  Congress  and  lead  the  thought  and  impulse 
of  the  people,  namely,  the  combination  of  a  man  of 
powerful  will  and  initiative  occupying  the  presidential 
chair  with  a  critical  situation  in  those  affairs  of  the 
nation  which  primarily  fall  within  the  control  of  the 
executive.  William  Henry  Harrison,  indeed,  in  his 
inaugural  address,  showed  a  tendency  to  belittle  the 
authority  of  his  office,  or  at  least  deprecated  any  arbi- 
trary or  individualistic  use  of  even  the  conceded  and 
rightful  powers  of  the  President.  Tyler's  incapacity 
to  fill  the  role  of  leader,  even  when  it  was  offered  him 
as  a  gift,  was  evidenced  by  his  dealings  with  the  vari- 
ous bills  to  incorporate  a  "Fiscal  Bank  of  the  United 
States."  Such  a  measure  having  been  passed  by  Con- 
gress and  vetoed  by  the  President,  and  the  attempt  to 


POWER   TO   LEGISLATION  13 

enact  it  over  his  veto  having  failed,  the  leaders  of  the 
Whig  party  asked  the  President  to  draft  a  bill  which 
would  be  unobjectionable  to  him.  After  consulting 
with  his  Cabinet,  Tyler  complied  with  this  request,  and 
the  bill  which  he  had  drawn  (at  least  in  outline)  was 
introduced  in  Congress  and  passed  by  both  houses. 
Thereupon  Tyler  vetoed  it.  The  result  was  a  storm 
of  indignation  and  disgust,  the  resignation  of  all  the 
members  of  the  Cabinet  except  Daniel  Webster,  and  an 
address  to  the  people  by  the  Whig  members  of  Con- 
gress in  which  they  solemnly  repudiated  their  Presi- 
dent. Congress  at  this  time  also,  upon  the  occasion  of 
another  of  Tyler's  vetoes,  felt  itself  strong  enough 
to  accept  a  report  of  one  of  its  committees,  to  which 
the  veto  message  had  been  referred,  condemning  the 
President's  undue  assumption  of  power. 

But  all  this  time  coming  events  were  casting  their 
long  and  ominous  shadows  "across  the  current  of  the 
nation's  life,  and  at  last  fate  brought  together  again 
a  great  crisis  and  a  President  strong  enough  to  cope 
with  it,  and  for  that  purpose  to  dominate  all  the  rest 
of  the  government.  Between  1861  and  1865,  under 
the  imperative  necessity  of  war,  the  President  actu- 
ally ruled  the  country,  and  the  legislative  branch  of 
government  took  little  constructive  part  in  the  con- 
duct of  affairs,  being  generally  content  to  register  its 
assent  to  indispensable  measures  of  legislation  and  to 
consider  and  devise  the  ways  of  raising  the  requisite 
supplies.  It  is  only  necessary  to  recall  three  measures 
of  capital  importance,  all  of  which  originated  in  the 
White  House  and  not  the  Capitol.  These  were  the 
first  call  for  volunteers,  the  emancipation  proclama- 


14  RELATION   OF   EXECUTIVE 

tion,  and  the  suspension  of  the  writ  of  habeas  corpus. 
It  is  true  the  last  was  afterwards  legitimized  by  act  of 
Congress,  but  it  was  originally  justified  as  a  war  mea- 
sure within  the  power  of  the  President.  The  Consti- 
tution may  have  been  severely  strained  by  the  shocks 
of  the  Civil  War,  but  it  was  neither  abrogated  nor 
suspended,  and  it  emerged  at  the  close  with  much  less 
modification  than  might  have  been  expected.  A  dem- 
ocracy can  make  successful  war,  and  at  the  same  time 
preserve  its  free  institutions  and  its  representative  sys- 
tem of  government — provided  it  lives  under  a  con- 
stitution as  wisely  ordered  as  that  of  the  United  States, 
and  provided  it  is  vigilantly  concerned  that  the  liber- 
ties of  the  individual,  placed  in  pledge  for  the  com- 
mon good  while  war  rages,  shall  be  reclaimed  upon 
the  return  of  peace. 

Of  Lincoln's  successor  little  need  be  said,  except  that 
his  inglorious  administration  witnessed  a  complete  re- 
versal of  the  division  of  power  as  between  the  Presi- 
dent and  Congress,  and  indeed  showed  how  far  the 
legislature  can  go  in  putting  the  curb  upon  a  President, 
if  the  latter  lacks  the  transcendent  gifts  of  leadership 
and  likewise  the  great  opportunity  afforded  by  war  or 
national  peril.  Andrew  Johnson's  stubbornness  was 
ineffectual  in  the  face  of  the  resolute  will  of  Congress. 
That  body  assumed  the  command.  Repeatedly  it  en- 
forced its  will  by  overriding  his  vetoes.  It  submitted 
the  Fourteenth  Amendment  to  the  states  against  the 
President's  expressed  disapproval.  It  put  through  its 
own  program  of  reconstruction  for  the  South.  It 
sought  persistently  to  restrict  the  President's  authority 
within  the  narrowest  possible  constitutional  limits,  as 


POWER   TO    LEGISLATION  15 

by  the  act  which  took  from  him  the  power  to  proclaim 
a  general  amnesty,  that  which  virtually  deprived  him 
of  the  command  of  the  army,  and  that  which  pre- 
vented him  from  removing  appointive  officers.  To 
watch  and  control  the  executive,  Congress  remained  in 
practically  continuous  session.  Finally  the  House  im- 
peached the  President  and  the  Senate  tried  him,  though 
the  two-thirds  majority  necessary  for  a  conviction 
could  not  be  made  to  cohere. 

From  1865  to  1898  no  one  of  the  successive  Presi- 
dents stands  forth  from  the  background  of  a  generally 
prosaic  history  as  conspicuously  a  national  leader,  nor 
as  exercising  any  remarkable  influence  over  Congress 
either  in  the  policy  or  the  details  of  legislation.  Presi- 
dent Cleveland,  it  is  true,  was  a  man  of  vigor  and  of 
indomitable  will;  he  freely  exercised  the  power  of  the 
veto,  and  his  views  and  plans  often  ran  counter  to 
those  of  the  legislative  body.  But  only  twice  in  his 
career  did  opportune  circumstance  give  him  room  to 
bring  to  the  front  the  latent  power  of  the  presidency 
and  elevate  him  to  a  position  of  commanding  author- 
ity. The  first  occasion  was  the  sending  of  federal 
troops  to  Chicago  to  put  an  end  to  the  great  railroad 
strike.  The  second  was  his  defiance  to  Great  Britain 
in  the  famous  message  to  Congress  concerning  the 
Venezuelan  boundary  dispute.  In  both  these  crises,  it 
must  be  admitted,  Mr.  Cleveland  manifested  a  spirit 
not  unworthy  to  be  compared  with  that  of  the  great 
Presidents  of  early  days.  And  in  both,  his  unhesitat- 
ing initiative  helped  to  vindicate  the  somewhat  clouded 
greatness  of  the  presidential  office. 

Nevertheless,  these  were  but  isolated  illustrations  of 


16  RELATION    OF   EXECUTIVE 

the  possibilities  of  executive  leadership.  Lacking  simi- 
lar occasions  for  the  putting  forth  of  presidential 
power,  they  made  no  permanent  change  in  its  effective- 
ness. And  indeed  the  period  about  the  close  of  Cleve- 
land's first  administration  has  appeared  to  many  as 
the  time  when  the  influence  of  the  executive — so  far 
as  concerns  any  actual  control  over  the  formulation  of 
policies  or  their  enactment  into  laws — had  sunk  to  the 
very  nadir.  It  was  in  1889  that  Lord  Bryce,  admit- 
tedly the  shrewdest  and  best-informed  of  all  foreign 
observers  of  the  American  government  at  work,  gave 
this  account  of  the  matter:  'The  President  himself, 
although  he  has  been  voted  into  office  by  his  party,  is 
not  necessarily  its  leader,  nor  even  one  among  its  most 
prominent  leaders.  Hence  he  does  not  sway  the  coun- 
cils and  guide  the  policy  of  those  members  of  Congress 
who  belong  to  his  own  side.  The  expression  of  his 
wishes  conveyed  in  a  message  has  not  necessarily  any 
more  ecect  on  Congress  than  an  article  in  a  prominent 
party  newspaper.  No  duty  lies  on  Congress  to  take 
up  a  subject  to  which  he  has  called  attention  as  need- 
ing legislation;  and  in  fact,  the  suggestions  which  he 
makes,  year  after  year,  are  usually  neglected,  even 
when  his  party  has  a  majority  in  both  houses,  or  when 
the  subject  lies  outside  party  lines/'3  And  later  in  the 
same  volume  it  is  said:  "Congress,  though  it  is  no 
more  respected  or  loved  by  the  people  now  than  it  was 
seventy  years  ago,  though  it  has  developed  no  higher 
capacity  for  promoting  the  best  interests  of  the  state, 
has  succeeded  in  occupying  nearly  all  the  ground  which 
the  Constitution  left  debatable  between  the  President 
3  Bryce,  "American  Commonwealth,"  (ist  edn.)  Vol.  I,  p.  206. 


POWER   TO   LEGISLATION  17 

and  itself,  and  would,  did  it  possess  a  better  internal 
organization,  be  even  more  plainly  than  it  now  is  the 
supreme  power  in  the  government/'4  More  specifi- 
cally in  regard  to  the  presidential  messages,  the  same 
author  observed :  "The  message  usually  discusses  the 
leading  questions  of  the  moment,  indicates  mischiefs 
needing  a  remedy,  and  suggests  the  requisite  legisla- 
tion. But  as  no  bills  are  submitted  by  the  President, 
and  as,  even  were  he  to  submit  them,  no  one  of  his 
ministers  sits  in  either  house  to  explain  and  defend 
them,  the  message  is  a  shot  in  the  air  without  practical 
result.  It  is  rather  a  manifesto,  or  declaration  of  opin- 
ion and  policy,  than  a  step  towards  legislation.  Con- 
gress is  not  moved ;  members  go  their  own  ways,  and 
bring  in  their  own  bills."5 

These  are  by  no  means  isolated  views.  This  opin- 
ion of  the  practical  position  of  the  presidency  was 
shared  not  only  by  the  statesmen  but  by  the  philosophi- 
cal writers  of  that  day.  And  even  as  much  as  nine 
years  later,  Mr.  E.  L.  Godkin  was  perfectly  justified  in 
saying :  "The  President  and  every  governor  of  a  state 
have  the  right  to  send  what  we  call  'messages'  to  the 
legislature,  directing  its  attention  to  certain  matters 
and  recommending  certain  action,  but  it  is  very  rare 
for  these  recommendations  to  have  much  effect.  The 
messages  are  rhetorical  performances,  intended  to  give 
the  public  an  idea  of  the  capacity  and  opinions  of  the 
writers  rather  than  to  furnish  a  foundation  for  law- 
making."6 

4  Idem,  Vol.  I,  p.  223. 

5  Idem,  Vol.  I,  p.  53. 

G  "Unforeseen  Tendencies  of  Democracy"  (1898),  p.  105. 


i8  RELATION,  OF   EXECUTIVE 

On  the  general  subject  of  the  presidential  office,  in 
its  actual  functioning  at  this  period  of  our  history,  we 
should  not  omit  to  cite  the  testimony  of  a  witness  who, 
at  that  time  a  professor  in  a  minor  college,  was  des- 
tined not  only  to  become  President  of  the  United 
States  but  to  exercise  a  more  profound  influence  upon 
the  relative  position  of  the  office  in  our  system  of  gov- 
ernment, and  indeed  upon  the  whole  current  of  Ameri- 
can affairs,  than  any  President  since  Washington.  In 
1887,  Woodrow  Wilson  published  the  first  edition  of 
his  well-known  work,  "Congressional  Government," 
the  very  title  of  which  is  significant.  In  that  book  he 
said:  "The  business  of  the  President,  occasionally" 
great,  is  usually  not  much  above  routine.  Most  of  the 
time  it  is  mere  administration,  mere  obedience  of  di- 
rections from  the  masters  of  policy,  the  standing  com- 
mittees. Except  in  so  far  as  his  power  of  veto  con- 
stitutes him  a  part  of  the  legislature,  the  President 
might,  not  inconveniently,  be  a  permanent  officer,  the 
first  official  of  a  carefully  graded  and  impartially  regu- 
lated civil-service  system,  through  whose  sure  series  of 
merit-promotions  the  youngest  clerk  might  rise  even 
to  the  chief  magistracy.  He  is  part  of  the  official 
rather  than  of  the  political  machinery  of  the  govern- 
ment, and  his  duties  call  rather  for  training  than  for 
constructive  genius."  And  again:  "The  plain  ten- 
dency is  towards  a  centralization  of  all  the  greater 
powers  of  government  in  the  hands  of  the  federal 
authorities,  and  towards  the  practical  confirmation  of 
those  prerogatives  of  supreme  overlordship  which 
Congress  has  been  gradually  arrogating  to  itself.  The 
central  government  is  constantly  becoming  stronger 


POWER   TO    LEGISLATION  19 

and  more  active,  and  Congress  is  establishing  itself  as 
the  one  sovereign  authority  in  that  government."7 

Yet  even  at  that  time,  those  whose  vision  could  pierce 
beneath  the  surface  did  not  fail  to  see  that  the  great 
powers  of  the  presidency  remained  what  they  had  al- 
ways been.  Though  disused,  they  were  not  atrophied. 
The  restoration  of  their  vigor,  of  their  predominance, 
but  awaited  the  coincidence  of  the  crisis  and  the  plan. 
What  is  more,  there  were  those  who  could  discern  a 
tendency  which  has  since  become  a  fact.  Lord  Bryce 
said:  "The  weakness  of  Congress  is  the  strength  of 
the  President.  Though  it  cannot  be  said  that  his  office 
has  risen  in  power  or  dignity  since  1789,  there  are 
reasons  for  believing  that  it  may  reach  a  higher  point 
than  it  has  occupied  at  any  time  since  the  Civil  War. 
The  tendency  everywhere  in  America  to  concentrate 
power  and  responsibility  in  one  man  is  unmistakable. 
There  is  no  danger  that  the  President  should  become 
a  despot,  that  is,  should  attempt  to  make  his  will  pre- 
vail against  the  will  of  the  majority.  But  he  may  have 
a  great  part  to  play  as  a  leader  of  the  majority  and  the 
exponent  of  its  will.  He  is  in  some  respects  better 
fitted  both  to  represent  and  to  influence  public  opinion 
than  Congress  is."8 

It  was  again  a  foreign  war  which  rescued  the  execu- 
tive branch  of  the  government  from  the  secondary 
place  into  which  it  had  fallen,  and  placed  in  its  hands 
the  attributes  of  initiative  and  command.  The  war 
with  Spain,  the  springing  into  immediate  prominence 
of  the  constitutional  powers  of  the  President  as  head 

7  Wilson,  "Congressional  Government"   (1887),  PP-  254,  316. 

8  Bryce,  "American  Commonwealth,"  Vol.  II,  p.  696. 


20  RELATION    OF   EXECUTIVE 

of  the  military  forces,  the  necessity  of  supporting  his 
plans  and  policies,  and  above  all,  the  new  set  of  inter- 
national relations  which  resulted,  compelling  the 
United  States  to  take  its  place  in  the  world's  business 
as  a  great  power  among  great  powers,  and  as  the 
guardian  of  far-distant  peoples, — these  decked  the 
stage  for  the  next  act  in  the  great  drama.  And  the 
President  wras  not  unequal  to  the  role  for  which  fate 
had  cast  him.  William  McKinley's  nature  was  the 
very  antithesis  of  an  autocratic  spirit.  Gentle  and 
kindly,  he  had  no  lust  for  power,  and  sought  always 
to  gain  his  ends  rather  by  the  reasonable  methods  of 
persuasion  than  by  the  rude  tactics  of  the  bully.  Yet 
in  his  hands,  even  if  more  by  the  force  of  circum- 
stances than  as  the  result  of  his  own  purpose  or  desire, 
the  presidency  rose  again  into  the  position  of  leader- 
ship and  even  predominance.  And  it  was  to  be  fore- 
seen that  it  would  not  again  lapse  into  obscurity.  This, 
at  any  rate,  was  the  prediction  of  Mr.  Wilson.  Two 
years  after  the  eventful  summer  of  1898,  he  wrote: 
"It  may  be  that  the  new  leadership  of  the  executive, 
inasmuch  as  it  is  likely  to  last,  will  have  a  very  far- 
reaching  effect  upon  our  whole  method  of  government. 
It  may  give  the  heads  of  the  executive  departments  a 
new  influence  upon  the  action  of  Congress.  It  may 
bring  about  as  a  consequence  an  integration  which  will 
substitute  statesmanship  for  government  by  mass 
meetings/'  "The  war  with  Spain,"  he  said  in  an- 
other place,  "again  changed  the  balance  of  parts.  For- 
eign questions  became  leading  questions  again,  as  they 
had  been  in  the  first  days  of  the  government,  and  in 
them  the  President  was  of  necessity  leader.  Our  new 


POWER   TO    LEGISLATION  21 

place  in  the  affairs  of  the  world  has  since  that  year  of 
transformation  kept  him  at  the  front  of  our  govern- 
ment, where  our  own  thoughts  and  the  attention  of 
men  everywhere  is  centered  upon  him."9 

About  this  time  two  other  influences  commenced  to 
operate  powerfully  in  favor  of  the  ascendancy  of  the 
executive.  One  was  a  doctrine  of  political  science,  the 
other  a  development  of  practical  politics.  On  the  one 
hand,  it  began  to  be  argued  that  leadership  in  the  busi- 
ness of  government  naturally  belongs  to  the  executive 
arm,  not  the  legislative.  And  this  for  two  reasons. 
The  attitude  of  the  legislator  towards  the  conditions 
with  which  the  laws  are  to  deal  is  more  or  less  theo- 
retic; that  of  the  officers  who  carry  the  laws  into  actual 
operation  is  always  practical.  The  statesman  in  the 
halls  of  the  legislature  may  have  some  prevision  of  the 
results  of  given  legislation;  but  the  man  in  the  White 
House  or  the  governor's  chamber  is  every  day  in  per- 
sonal touch  with  actual  facts,  conditions,  and  needs. 
Again,  whatever  may  be  the  abstract  conception  of 
government,  it  is  the  fact  that  the  executive,  not  the 
legislature,  reaps  the  praise  or  bears  the  blame  of  the 
administration  as  a  whole.  And  responsibility  cannot 
be — at  any  rate  should  not  be — divorced  from  con- 
trol. "Responsibility  for  the  use  of  executive  power 
inevitably  implies  leadership.  Executive  power  and 
leadership  cannot  be  separated.  In  both  public  and 
private  business,  those  who  are  charged  with  high 
duties  and  who  are  made  responsible  for  their  proper 
discharge  must  be  leaders  or  failures.  On  the  con- 

9  Woodrow  Wilson,  "Constitutional  Government  in  the  United 
States,"  (1908),  p.  59. 


22  RELATION    OF   EXECUTIVE 

trary,  irresponsible  official  leadership  means  autocracy. 
Irresponsible  official  leadership  means  domination  by 
the  political  boss/710 

On  the  other  hand,  the  epoch  of  which  we  are  speak- 
ing witnessed  the  revitalizing  of  an  idea,  old  in  prac- 
tical politics,  but  which  had  fallen  into  decadence. 
This  was  the  conception  of  the  President  as  the  leader 
of  his  party.  There  were  periods,  as  we  have  seen, 
when  the  President  was  not  necessarily  the  leader  of 
his  party,  nor  even  one  of  its  most  influential  mem- 
bers. Among  the  later  Presidents,  some  have  gladly 
accepted  this  office  and  its  responsibilities ;  others  have 
seen  no  way  of  escape  from  them.  But  it  seems  now 
to  have  become  an  accepted  rule  that  the  President 
must  be  regarded  as  the  chief  or  head  of  the  party 
which  has  placed  him  in  power,  and  that  he  must,  at 
least  in  all  matters  of  a  partisan  .character,  devote  his 
political  activities  (as  distinguished  from  the  routine 
of  administration)  to  guiding  its  counsels  and  secur- 
ing its  continuance  in  the  control  of  the  government. 
Now  a  political  party  comes  into  power  pledged  to  the 
support  of  certain  policies  and  purposes  which  have 
been  set  forth  in  its  platform.  Moreover,  the  success- 
ful candidate  for  the  presidency,  in  his  campaign 
speeches,  will  have  set  forth  these  policies  more  defi- 
nitely and  will  probably  have  stated  more  explicitly  the 
purposes  he  means  to  pursue.  The  result  of  the  elec- 
tion is  regarded  as  a  mandate  from  the  people  (at  least 
from  the  majority),  and  the  party  assumes  the  reins 
of  government  with  a  more  or  less  definite  program, 
which  it  is  the  business  of  its  elected  members  to  enact 

10  "Municipal  Research,"  May,  1915,  p.  72. 


POWER   TO    LEGISLATION  23 

into  law.  But  who  is  to  take  the  initiative  in  this? 
The  party  probably  has  a  majority  in  both  houses  of 
Congress.  If  so,  it  has  not  less  than  218  members  in 
the  House  of  Representatives  and  not  less  than  49  in 
the  Senate.  Among  them  may  be  several  men  possess- 
ing influence,  initiative,  and  other  qualities  of  con- 
structive statesmanship.  But  the  leader  of  the  party 
is  the  President,  and  thus  it  becomes  his  business  to 
see  to  it  that  Congress  redeems  the  party's  pledges  and 
enacts  the  party's  measures.  In  detail,  some  of  these 
measures  may  be  highly  objectionable  to  individual 
members  of  Congress.  It  may  even  happen  that  a 
particular  measure,  as  an  entirety,  is  regarded  with 
great  disfavor  by  nearly  all  of  them.  But  it  is  a  party 
measure;  there  is  pressure  from  the  party  leader;  the 
welfare  of  the  party  is  at  stake;  and  no  merely  per- 
sonal opinions  or  wishes  must  be  allowed  to  interfere, 
nor  even  substantial  doubts  whether  the  measure  does 
not  violate  the  Constitution. 

The  accession  of  Theodore  Roosevelt  to  the  presi- 
dency brought  into  play  conditions  which  were  almost 
ideally  adapted  to  work  out  an  immense  increase  in 
the  power  and  domination  of  the  executive.  Much 
was  due  to  his  own  personality;  less,  but  still  an  ap- 
preciable part,  to  the  occurrence  of  circumstances 
which  permitted  his  natural  qualities  strongly  to  as- 
sert themselves.  Here  was  a  born  leader  of  men,  in- 
tensely alert,  energetic,  courageous,  and  determined, 
eager  to  make  his  will  prevail,  and  glad  to  accept  the 
utmost  measure  of  responsibility.  Besides,  he  was 
thoroughly  convinced  of  what  we  have  spoken  of  as  a 
concept  of  political  science — that  the  office  of  leader- 


24  RELATION    OF   EXECUTIVE 

ship  in  government  does  not  suit  or  belong  to  the  legis- 
lative branch,  but  is  the  natural  duty  and  prerogative 
of  the  executive.  And  the  practical  doctrine  that  the 
chief  magistrate  of  the  state  or  nation  is  the  leader  of 
his  party  had  no  dubious  sound  to  him.  On  the  con- 
trary, he  constantly  sought  to  broaden  it  out  into  the 
doctrine  that  he  is  the  chief  representative  of  the  people 
as  a  whole,  and  so,  not  so  much  the  leader  of  this  or 
that  party,  as  of  the  state  or  the  nation.  For  in  effect 
it  is  hardly  too  much  to  say  that  Roosevelt,  alone 
among  our  Presidents  up  to  that  time,  consistently  be- 
lieved that  predominance  in  government  rightfully  be- 
longs to  the  executive,  and  that  it  so  belongs  and 
should  be  exercised,  not  merely  for  the  meeting  of 
some  special  crisis  or  with  reference  to  the  enactment 
or  repeal  of  some  particular  measure,  but  continuously 
and  as  a  matter  of  fixed  principle. 

Actually  he  was  not  always  able  to  translate  these 
theories  into  facts.  Congress  was  by  no  means  sub- 
missive. The  contest  between  the  two  branches  of 
government  was  more  than  once  brought  out  into  the 
open  and  threatened  to  become  critically  serious.  But 
if,  in  Roosevelt's  incumbency,  the  new  hegemony  of 
the  executive  was  not  carved  into  an  established  fact, 
at  least  it  became  clear  that  the  older  notions  of  the 
President's  place  in  the  government  were  irretrievably 
gone. 

In  his  charmingly  frank  autobiography  Mr.  Roose- 
velt shows  us  exactly  the  state  of  mind  with  which 
he  approached  these  questions,  first  as  Governor  of 
New  York  and  then  as  President  of  the  United  States, 
and  the  processes  which  he  employed  to  make  his 


POWER   TO   LEGISLATION  25 

leadership  effective.  "In  theory,"  he  says,  "the  ex- 
ecutive has  nothing  to  do  with  legislation.  In  prac- 
tice, as  things  now  are,  the  executive  is  or  ought  to  be 
peculiarly  representative  of  the  people  as  a  whole.  As 
often  as  not  the  action  of  the  executive  offers  the  only 
means  by  which  the  people  can  get  the  legislation  they 
demand  and  ought  to  have.  Therefore  a  good  ex- 
ecutive, under  the  present  conditions  of  American  po- 
litical life,  must  take  a  very  active  interest  in  getting 
the  right  kind  of  legislation,  in  addition  to  performing 
his  executive  duties  with  an  eye  single  to  the  public 
welfare.  More  than  half  of  my  work  as  Governor  was 
in  the  direction  of  getting  needed  and  important  legis- 
lation. I  accomplished  this  only  by  arousing  the  peo- 
ple, and  riveting  their  attention  on  what  was  done."11 
An  excellent  illustration  of  the  exertion  of  executive 
influence  upon  legislation,  given  a  strong  and  determ- 
ined executive,  is  afforded  by  the  following  incident, 
related  by  Mr.  Roosevelt  in  the  same  volume,  which 
occurred  while  he  was  Governor  of  New  York:  "I 
had  made  up  my  mind  that  if  I  could  get  a  show  in  the 
legislature  the  bill  would  pass,  because  the  people  had 
become  interested  and  the,  representatives  would 
scarcely  dare  to  vote  the  wrong  way.  Accordingly,  on 
April  27,  1899,  I  sent  a  special  message  to  the  As- 
sembly, certifying  that  the  emergency  demanded  the 
immediate  passage  of  the  bill.  The  machine  leaders 
were  bitterly  angry,  and  the  Speaker  actually  tore  up 
the  message  without  reading  it  to  the  Assembly.  That 
night  they  were  busy  trying  to  arrange  some  device 
for  the  defeat  of  the  bill,  which  was  not  difficult,  as 
11  Theodore  Roosevelt,  "Autobiography,"  p.  292. 


26  RELATION   OF   EXECUTIVE 

the  session  was  about  to  close.  At  seven  the  next 
morning  I  was  informed  of  what  had  occurred.  At 
eight  I  was  in  the  capitol  at  the  executive  chamber, 
and  sent  in  another  special  message  which  opened  as 
follows:  'I  learn  that  the  emergency  message  which 
I  sent  last  evening  to  the  Assembly  on  behalf  of  the 
Franchise  Tax  Bill  has  not  been  read.  I  therefore 
send  hereby  another  message  on  the  subject.  I  need 
not  impress  upon  the  Assembly  the  need  of  passing 
this  bill  at  once.'  I  sent  this  message  to  the  Assembly 
by  my  secretary,  with  an  intimation  that  if  this  were 
not  promptly  read  I  should  come  up  in  person  and 
read  it.  Then,  as  so  often  happens,  the  opposition 
collapsed,  and  the  bill  went  through  both  houses  with 
a  rush."12 

It  was  also  characteristic  of  President  Roosevelt — 
and  a  factor  in  the  working  cut  of  the  whole  problem 
of  the  relation  of  these  two  branches  of  government — 
that  he  resisted  with  the  utmost  energy  any  attempt  on 
the  part  of  Congress  to  define  the  powers  of  the  presi- 
dency within  narrower  limits  than  those  which  he  con- 
ceived as  its  rightful  bounds.  On  this  point  also  we 
are  able  to  cite  his  own  testimony.  In  regard  to  his 
controversy  with  Congress  over  the  appointment  of 
various  unsalaried  commissions,  he  has  this  to  say  in 
his  autobiography :  "The  report  of  the  Country  Life 
Commission  was  transmitted  to  Congress  by  me  on 
February  9,  1909.  In  the  accompanying  message  I 
asked  for  $25,000  to  print  and  circulate  the  report  and 
to  prepare  for  publication  the  immense  amount  of 
valuable  material  collected  by  the  commission  but  still 

12  Idem,  p.  311. 


POWER   TO    LEGISLATION  27 

unpublished.  The  reply  made  by  Congress  was  not 
only  a  refusal  to  appropriate  the  money,  but  a  positive 
prohibition  against  continuing  the  work.  The  Tawney 
amendment  to  the  Sundry  Civil  Bill  forbade  the  Presi- 
dent to  appoint  any  further  commissions  unless  specifi- 
cally authorized  by  Congress  to  do  so.  Had  this 
prohibition  been  enacted  earlier  and  complied  with, 
it  would  have  prevented  the  appointment  of  the  six 
Roosevelt  commissions.  But  I  would  not  have  com- 
plied with  it.  ...  As  what  was  almost  my  last  offi- 
cial act,  I  replied  to  Congress  that  if  I  did  not  believe 
the  Tawney  amendment  to  be  unconstitutional,  I  would 
veto  the  Sundry  Civil  Bill  which  contained  it,  and  that 
if  I  were  remaining  in  office  I  would  refuse  to  obey 
it."13 

But  the  ideas  of  Roosevelt  as  President  went  much 
further  than  this.  He  was  fond  of  referring  his  con- 
ception of  the  duties  and  responsibilities  of  the  office 
to  the  standards  of  Jackson  and  of  Lincoln.  But  what 
he  did,  consciously  or  unconsciously,  was  to  revive 
and  apply  the  doctrine  of  Hamilton,  that  the  Consti- 
tution contains  a  general  grant  of  executive  power, 
which  is  not  restricted  to  the  specific  functions  there- 
after enumerated,  but  on  the  contrary  is  circumscribed 
only  in  so  far  as  the  Constitution  explicitly  limits  it. 
Of  course  it  is  a  necessary  deduction  from  this  theory 
that  the  President  can  exert  his  powers  in  any  direc- 
tion that  is  not  barred  by  the  Constitution.  And  this 
is  the  very  core  of  the  problerfi.  If  the  President  must 
wait  upon  Congress  and  do  only  what  it  authorizes  him 
to  do,  he  is  subordinate  to  Congress  save  only  to  the 

13  Idem,  p.  430. 


28  RELATION   OF   EXECUTIVE 

extent  to  which  his  personal  influence  may  prevail.  If 
not,  he  is  an  independent  agency  and  in  many  impor- 
tant matters  may  take  the  initiative.  Mr.  Roosevelt's 
side  of  the  argument  is  thus  set  forth  by  himself : 

'The  most  important  factor  in  getting  the  right  spirit 
in  my  administration,  next  to  the  insistence  upon  cour- 
age, honesty,  and  a  genuine  democracy  of  desire  to  serve 
the  plain  people,  was  my  insistence  upon  the  theory  that 
the  executive  power  is  limited  only  by  specific  restrictions 
and  prohibitions  appearing  in  the  Constitution  or  im- 
posed by  the  Congress  under  its  constitutional  powers. 
My  view  was  that  every  executive  officer,  and  above  all 
every  executive  officer  in  high  position,  was  a  steward  of 
the  people,  bound  actively  and  affirmatively  to  do  all  he 
could  for  the  people,  and  not  to  content  himself  with 
the  negative  merit  of  keeping  his  talents  undamaged  in  a 
napkin.  I  declined  to  adopt  the  view  that  what  was  im- 
peratively necessary  for  the  nation  could  not  be  done  by 
the  President  unless  he  could  find  some  specific  authori- 
zation to  do  it.  My  belief  was  that  it  was  not  only  his 
right  but  his  duty  to  do  anything  that  the  needs  of  the 
nation  demanded  unless  such  action  was  forbidden  by 
the  Constitution  or  by  the  laws.  Under  this  interpreta- 
tion of  executive  power,  I  did  and  caused  to  be  done 
many  things  not  previously  done  by  the  President  and 
the  heads  of  the  departments.  I  did  not  usurp  power, 
but  I  did  greatly  broaden  the  use  of  executive  power. 
In  other  words,  I  acted  for  the  public  welfare,  I  acted 
for  the  common  well-being  of  all  our  people,  whenever 
and  in  whatever  manner  was  necessary,  unless  prevented 
by  direct  constitutional  or  legislative  prohibition."14 

Again,  of  the  steps  taken  to  settle  the  anthracite  coal 
strike  in  1902,  Mr.  Roosevelt  says : 

"Very  much  the  most  important  action  I  took  as  re- 
gards labor  had  nothing  to  do  with  legislation,  and  rep- 
resented executive  action  which  was  not  required  by  the 
Constitution.     It  illustrated  as  well  as  anything  that  I 
14  Theodore  Roosevelt,  "Autobiography,"  p.  371. 


POWER   TO    LEGISLATION  29 

did  the  theory  which  I  have  called  the  Jackson-Lincoln 
theory  of  the  presidency ;  that  is,  that  occasionally  great 
national  crises  arise  which  call  for  immediate  and  vigo- 
rous executive  action,  and  that  in  such  cases  it  is  the  duty 
of  the  President  to  act  upon  the  theory  that  he  is  the 
steward  of  the  people,  and  that  the  proper  attitude  for 
him  to  take  is  that  he  is  bound  to  assume  that  he  has  the 
legal  right  to  do  whatever  the  needs  of  the  people  de- 
mand, unless  the  Constitution  or  the  laws  explicitly  for- 
bid him  to  do  it."  ("Autobiography,"  p.  479.) 

One  further  illustration  will  suffice  to  make  clear 
both  Mr.  Roosevelt's  conception  of  the  presidency  and 
its  working  in  actual  practice.  He  made  an  agree- 
ment with  the  governmental  authorities  of  Santo  Do- 
mingo by  which  the  custom  houses  of  that  country 
were  placed  in  the  hands  of  American  officers,  and  it 
was  stipulated  that  45  per  cent  of  the  revenue  collected 
was  to  be  turned  over  to  the  Santo  Domingan  gov- 
ernment, and  the  remainder  placed  in  a  sinking  fund 
in  New  York  for  the  benefit  of  the  creditors  of  that 
government.  As  these  creditors  were  mostly  Euro- 
peans, and  two  or  three  foreign  governments  were 
threatening  concerted  action  to  secure  the  payment  of 
the  claims  of  their  nationals,  this  action  was  taken  for 
the  purpose  of  averting  foreign  intervention.  Con- 
cerning this  matter,  he  says  in  his  "Autobiography" 
(P-  524)  : 

'The  Constitution  did  not  explicitly  give  me  the  power 
to  bring  about  the  necessary  agreement  with  Santo  Do- 
mingo. But  the  Constitution  did  not  forbid  my  doing 
what  I  did.  I  put  the  agreement  into  effect,  and  I  con- 
tinued its  execution  for  two  years  before  the  Senate 
acted ;  and  I  would  have  continued  it  until  the  end  of  my 
term,  if  necessary,  without  any  action  by  Congress.  But 
it  was  far  preferable  that  there  should  be  action  by  Con- 
gress, so  that  we  might  be  proceeding  under  a  treaty 


30  RELATION   OF   EXECUTIVE 

which  was  the  law  of  the  land,  and  not  merely  by  a  di- 
rection of  the  chief  executive  which  would  lapse  when 
that  particular  executive  left  office.  I  therefore  did  my 
best  to  get  the  Senate  to  ratify  what  I  had  done." 

The  next  President  brought  to  the  office  an  almost 
diametrically  opposite  theory  of  the  executive.  To  the 
conservative  and  well-trained  legal  mind  of  Mr.  Taft 
the  idea  of  a  government  by  personal  impulse,  or  even 
by  the  exercise  of  the  judgment  and  discretion  of  any 
one  man,  was  little  short  of  abhorrent.  In  his  view, 
it  was  incorrect  to  describe  the  President  as  the  "stew- 
ard of  the  people"  or  as  the  "guardian  of  the  public 
welfare."  To  be  sure  (so  he  might  have  reasoned) 
the  President  is  not  in  any  proper  sense  the  "servant" 
of  the  people;  he  is  the  chief  magistrate  of  the  nation, 
charged  with  very  high  and  important  duties,  vested 
with  a  wide  measure  of  discretion  in  their  discharge, 
and  laden  with  heavy  responsibilities.  Circumstances 
sometimes  arise  which  make  him  the  guide  and  leader 
of  the  people.  But  the  orbit  of  his  activities  is  always 
strictly  marked  out  by  the  Constitution.  And  his  every^ 
step  must  have  the  justification  of  law.  For,  funda- 
mentally, ours  is  a  government  of  law.  Whatever  is 
done  must  have  the  warrant  of  law.  Now  the  law- 
making  power  of  the  nation  is  vested  in  Congress. 
True,  the  President  may  "recommend"  to  Congress 
measures  which  he  conceives  to  be  in  the  public  inter- 
est and  he  can  veto  bills  which  appear  to  him  to  be 
inconducive  to  the  public  welfare.  But  that  is  as  far 
as  he  can  constitutionally  go.  What  new  laws  are 
needed?  What  old  laws  should  be  amended  or  re- 
pealed? How  far,  within  the  possible  limits  of  legis- 


POWER   TO   LEGISLATION  31 

lative  achievement  as  distinguished  from  individual 
initiative  or  concerted  individual  action,  is  it  possible 
to  ameliorate  the  condition  of  the  general  public?  The 
solution  of  these  questions  is  for  the  legislative  branch 
of  the  government,  not  the  executive.  The  people's 
elected  representatives  in  the  houses  of  Congress  are 
their  stewards  and  the  guardians  of  their  welfare. 
That  is  wrhat  they  are  elected  for. 

That  the  foregoing  expresses  fairly,  at  least  in  its 
essential  outlines,  President  Taft's  understanding  of 
our  system  of  government  and  of  the  place  of  the 
executive  in  it,  may  be  gathered  from  his  writings 
published  after  he  retired  from  office.  In  particular, 
he  has  this  to  say: 

"The  true  view  of  the  executive  functions  is,  as  I  con- 
ceive it,  that  the  President  can  exercise  no  power  which 
cannot  be  fairly  and  reasonably  traced  to  some  specific 
grant  of  power,  or  justly  implied  and  included  within 
such  express  grant  as  proper  and  necessary  to  its  exer- 
cise. Such  specific  grant  must  be  either  in  the  federal 
Constitution  or  in  an  act  of  Congress  passed  in  pursuance 
thereof.  There  is  no  undefined  residuum  of  power  which 
he  can  exercise  because  it  seems  to  him  to  be  in  the  public 
interest.  .  .  .  My  judgment  is  that  the  view  ascribing  an 
undefined  residuum  of  power  to  the  President  is  an  un- 
safe doctrine,  and  that  it  might  lead  under  emergencies 
to  results  of  an  arbitrary  character,  doing  irremediable 
injustice  to  private  rights.  The  mainspring  of  such  a 
view  is  that  the  executive  is  charged  with  responsibility 
for  the  welfare  of  all  the  people  in  a  general  way,  that 
he  is  to  play  the  part  of  a  universal  Providence  and  set 
all  things  right,  and  that  anything  that  in  his  judgment 
will  help  the  people  he  ought  to  do,  unless  he  is  expressly 
forbidden  to  do  it.  The  wide  field  of  action  that  this 
would  give  to  the  executive  one  can  hardly  limit."15 

15  William  H.  Taf t,  "Our  Chief  Magistrate,"  pp.  139-144- 


32  RELATION   OF   EXECUTIVE 

And  yet  it  was  too  late  to  return  to  any  such  theory 
of  executive  power  as  might  have  been  entertained  a 
generation  before.  Political  developments  had  pre- 
vented that.  The  position  and  responsibility  of  the 
President  as  the  leader  of  his  party  was  no  longer  a 
proposition  for  debate,  nor  a  phenomenon  of  occasion- 
al personal  volition.  It  was  an  unshakable  fact  and 
a  permanent  institution.  President  Taft  accepted  it 
with  that  abundant  good  sense  and  appreciation  of  the 
practical  which  always  characterized  him,  as  witness 
his  firm  interference  to  adjust  the  differences  between 
the  two  houses  of  Congress  in  the  matter  of  the  tariff 
bill  in  1909  and  to  force  the  passage  of  an  act  which 
would  in  some  measure  redeem  the  promises  of  the 
party.  But  there  is  ground  to  believe  that  the  theory 
of  the  presidency  which  had  formed  itself  in  the  mind 
of  the  sound  constitutional  lawyer  and  ex- judge,  Wil- 
liam Howard  Taft,  was  not  precisely  coincident  with 
that  other  theory  upon  which  President  Taft,  leader 
of  the  Republican  party,  found,  himself  obliged  at 
times  to  act.  And  it  is  perhaps  fair  to  surmise  that 
the  reconciliation  was  not  effected  without  an  effort. 

Mr.  Taft's  successor  became  the  leader  of  the 
nation  in  a  stupendous  war.  An  autocratic  monarch 
always  has  within  his  grasp  the  controls  which  operate 
and  guide  the  war  machine;  but  war  is  a  business  to 
which  a  democracy  is  very  ill  adapted.  In  the  history 
of  the  Roman  Republic  it  was  more  than  once  neces- 
sary to  appoint  a  dictator  in  order  to  save  the  state. 
And  any  modern  republic,  if  it  would  participate  ef- 
fectively in  a  war  of  the  first  magnitude,  must  con- 
sent to  a  similar  concentration  of  power  in  the  hands 


POWER   TO    LEGISLATION  33 

of  one  man  or  a  few  men.  Such  a  course  is  abnormal 
for  a  self-governing  people.  But  war  also  is  utterly 
abnormal.  And  sometimes  heroic  measures  must  be 
taken  to  repel  a  gigantic  danger.  The  specter  of  war 
is  not  to  be  exorcised  by  the  deliberate  processes  of 
peace.  Fortunately  for  us,  however,  this  does  not 
mean  that  the  Constitution  is  abrogated  or  even  sus- 
pended, in  so  much  as  a  single  line,  when  the  nation  be- 
comes an  army.  The  wise  foresight  of  its  framers 
contemplated  even  such  a  crisis  as  that  through  which 
we  have  recently  passed,  and  its  ample  provisions  have 
been  found  sufficient  to  encompass  all  measures  es- 
sential to  the  country's  preservation  and  to  the  effi- 
cient putting  forth  of  its  strength  for  the  winning  of 
the  war.  For  this  supreme  purpose  the  people,  through 
their  representatives  in  the  houses  of  Congress, 
delegated  to  their  President  powers  of  such  vast  mag- 
nitude and  range  that  their  parallel  is  not  to  be  found 
in  all  the  pages  of  history.  For  since  the  days  of  Sulla 
at  least,  no  other  man  has  ever  held,  legally  and  by  the 
freewill  gift  of  his  fellow  citizens,  such  unrestricted 
control  over  their  lives  and  fortunes.  But  he  held 
these  extraordinary  powers  in  trust.  They  were  not  a 
part  of  our  normal  governmental  life.  Their  deposit 
was  but  temporary  and  to  meet  an  emergency.  Upon 
the  return  of  peace,  the  trust  was  accomplished  and  the 
deposit  must  be  restored. 

The  experience  through  which  the  country  has  been 
passing,  the  necessary  leadership  of  the  executive  as 
both  the  master  of  war  and  the  administrator  of  the 
people's  affairs,  the  determination  by  him  of  the  meas- 
ures which  he  judged  necessary  for  the  success  of  the 


34  RELATION   OF   EXECUTIVE 

war,  the  attitude  of  Congress,  as  shown  in  its  eventual 
willingness  (but  not  without  some  stumbling  and  expos- 
tulation) to  grant  him  whatever  authority  he  deemed 
essential,  the  gradual  habituation  of  the  people  to  the 
regulation  of  their  daily  lives  by  all  ranks  of  admin- 
istrative officers — all  these  things  must  have  a  pro- 
found influence  upon  the  position  of  the  presidency  in 
our  system  of  government.  How  far  that  influence 
will  extend  and  what  will  be  its  final  result  lies  behind 
the  veil  of  the  future.  And  as  prophecy  does  not  fall 
within  the  scope  of  this  study,  but  only  history,  it  is 
only  the  first  administration  of  President  Wilson  that 
can  be  passed  under  review  for  the  purpose  of  examin- 
ing into  the  growth  of  executive  power. 

That  administration  began  with  a  clear  field  for  the 
executive  authority,  since  his  party  commanded  a  ma- 
jority in  both  houses  of  Congress.  As  respects  the 
House  of  Representatives  at  least,  candor  compels  the 
admission  that  the  results  of  the  election  reflected  no 
great  credit  upon  the  electorate.  With  certain  notable 
exceptions,  the  great  body  of  the  administration's  fol- 
lowers in  the  lower  house  were  much  below  the  con- 
gressional average  in  respect  to  intelligence,  experi- 
ence, and  capacity  for  the  management  of  large  affairs. 
In  addition  to  this,  the  record  of  the  Democratic 
party,  up  to  that  time,  had  shown  it  to  be  strong  and 
effective  in  opposition,  but  curiously  inept,  when  placed 
in  power,  for  the  carrying  on  of  constructive  work  in 
legislation,  chiefly  in  consequence  of  its  inveterate  ten- 
dency, when  in  control  of  the  government,  to  break 
out  into  internecine  quarrels  and  to  dissolve  into  ir- 
reconcilable factions.  More  than  ever,  therefore,  the 


POWER   TO    LEGISLATION  35 

President  was  placed  in  the  position  of  leader  of  his 
party  and  of  the  party's  representatives  in  the  Con- 
gress, and  more  than  ever,  Congress  was  amenable  to 
presidential  guidance  and  persuasion.  Quite  frankly 
the  members  of  the  legislature  looked  to  the  President 
to  tell  them  what  to  do,  and  quite  as  frankly  the  Presi- 
dent accepted  the  responsibility.  It  will  not  have  been 
forgotten  that  his  first  inaugural  address  outlined  in 
general  terms,  but  with  plain  indications  as  to  specific 
measures,  the  program  of  legislation  which  the  party 
proposed  to  put  into  effect.  And  as  an  evidence  of  his 
desire  for  close  co-operation  with  the  legislative  body, 
and  to  extend  his  powers  of  recommendation,  advice, 
and  persuasion  to  the  utmost  legitimate  limits,  it  will 
be  remembered  that  Mr.  Wilson  revived  Washington's 
custom  of  reading  his  messages  to*  the  Congress  as- 
sembled in  joint  session,  instead  of  sending  them  by 
the  hand  of  a  secretary.  About  this  time  also  it  be- 
came the  custom  to  apply  the  name  "administration 
bills"  to  those  projects  of  legislation  which  were  either 
drafted  in  the  executive  departments  or  known  to  con- 
stitute a  part  of  the  President's  program,  as  distin- 
guished from  measures  which  had  their  origin  in  com- 
mittees or  in  the  initiative  of  an  individual  member. 

The  country  at  large  seemed  to  accept  as  quite  nat- 
ural the  leadership  of  the  White  House.  As  a  curious 
bit  of  evidence  bearing  on  this  point  it  will  be  recalled 
that,  in  the  summer  of  1916,  when  the  President  was 
endeavoring  by  mediation  and  conciliation  to  avert  the 
threatened  general  railroad  strike,  the  committee  of 
railroad  presidents  who  were  in  conference  with  him 
undertook  to  concede  the  demand  of  the  employes  for 


36  RELATION   OF   EXECUTIVE 

an  eight-hour  day  if  he  would  give  them  an  absolute 
guaranty  that  he  would  secure  from  Congress  legis- 
lation which  would  permit  them  to  raise  freight  rates. 
No  such  suggestion  emanated  from  the  President. 
But  the  circumstances  shows  the  public  conception  of 
him,  then  existing,  as  the  master  of  Congress  and  the 
dominating  figure,  not  in  party  politics  but  in  legis- 
lation. 

Substantially  all  the  laws  desired  by  the  President 
in  his  first  administration  were  enacted.  But  Congress 
was  not  completely  docile.  At  times  there  were  strong 
voices  of  dissent  and  of  remonstrance  against  the 
goad.  For  instance,  the  child-labor  bill  was  not  passed 
through  the  Senate  without  the  greatest  difficulty.  It 
was  necessary  for  the  President  to  hold  personal  con- 
ference with  some  of  the  Senators  who  were  most  de- 
termined in  their  opposition.  Several  members  of  that 
body  were  by  no  means  convinced  that  the  act,  if 
passed,  would  be  constitutional;  but  when  they  gave 
voice  to  their  doubts,  they  were  assured  by  another 
Senator  that,  in  his  judgment,  the  presidential  assump- 
tion of  legislative  functions  was  a  greater  menace  to 
the  Constitution  than  the  enactment  of  any  given  mea- 
sure would  be.  Perhaps  the  most  extreme  denuncia- 
tion of  the  tendency  in  this  direction  was  that  ex- 
pressed by  Senator  Works  of  California  in  his  vale- 
dictory address,  delivered  January  4,  1917.  He  is 
reported  to  have  said: 

"The  fear  of  judicial  usurpation  of  power  was  upper- 
most in  the  mind  of  Mr.  Jefferson,  but  he  and  others  were 
able  to  see  the  danger  now  confronting  us,  of  the  un- 
warranted and  unconstitutional  usurpation  of  power  by 


POWER   TO    LEGISLATION  37 

the  President,  amounting  practically  to  a  dictatorship, 
and  the  complacent  surrender  of  its  powers  and  functions 
and  abandonment  of  its  duties  and  obligations  by  the 
Congress  of  the  United  States.  The  tendency  towards 
centralized,  unchecked,  and  unlimited  power  on  the  part 
of  the  President  has  existed  for  some  years  past,  and 
has  grown  rapidly  worse  and  more  offensive  in  the  last 
four  years.  Never  in  the  entire  history  of  the  country 
has  the  President  so  completely  and  defiantly  usurped  the 
law-making  powers  of  the  government  and  dictated  and 
forced  the  course  of  Congress,  and  never  has  the  Con- 
gress been  so  submissive  or  so  subservient  to  a  power 
outside  itself.  Never  in  all  our  history  have  we  come  so 
near  to  a  despotic  government  by  a  dictator  as  during 
the  last  four  years.  Members  of  Congress  have,  under 
the  lash  of  executive  and  party  domination,  surrendered 
their  conscientious  convictions  and  voted  against  their 
own  sentiments  of  right  and  justice.  We  have  on  the 
statute  books  today  not  one  but  many  enactments  that 
are  the  laws  of  a  dictator  and  not  the  free  and  voluntary 
acts  of  the  Congress,  and  we  have  men  holding  offices 
of  the  highest  trust  whose  confirmation  was  the  result  of 
the  same  dictatorial  power  and  not  the  free  and  volun- 
tary action  of  this  body."16 

Dissociated  from  the  abnormal  conditions  created  by 
the  war,  what,  then,  is  the  present  position  of  the 
presidency?  The  answer  is  that  the  American  Presi- 
dent, without  losing  anything  of  his  constitutional 
authority  or  anything  of  the  prestige  and  influence 
originally  planned  for  him,  has  drawn  to  himself  pow- 
ers which  very  much  resemble  those  of  a  British  prime 
minister.  The  difference,  of  course,  is  that  the  Presi- 
dent is  not  dependent  upon  the  breath  of  parliamentary 
favor,  and  that  no  hostile  majority  against  him,  not 
even  the  defeat  of  his  most  cherished  and  most  earn- 

16  Congressional  Record,  Vol.  54,  part  I,  p.  865 ;  64th  Con- 
gress, 2d  Session,  January  5,  1917. 


38  RELATION   OF   EXECUTIVE 

estly  advocated  measures,  could  force  his  resignation. 
He  assumes  office  charged  with  responsibility  to  en- 
act the  party's  program.  But  if  he  fails  in  this,  the 
responsibility  is  neither  his  nor  the  party's;  it  is  cast 
upon  recalcitrant  members  of  Congress.  The  Presi- 
dent is  not  forced,  in  any  mishap  whatever,  to  "go  to 
the  country"  in  the  English  sense.  Mr.  Wilson  him- 
self has  said: 

"It  is  becoming  more  and  more  true,  as  the  business  of 
the  government  becomes  more  and  more  complex  and 
extended,  that  the  President  is  becoming  more  and  more 
a  political  and  less  and  less  an  executive  officer.  His  ex- 
ecutive powers  are  in  commission,  while  his  political 
powers  more  and  more  center  and  accumulate  upon  him 
and  are  in  their  very  nature  personal  and  inalienable."17 

The  results  of  these  developing  tendencies  have  been 
summed  up,  with  some  rhetorical  exaggeration  but 
none  the  less  with  substantial  truth,  by  a  writer  in  The 
New  Republic  in  the  following  terms : 

"The  private  individual  of  Congress  is  dead,  and  it  is 
surely  important  that  there  is  none  to  sing  his  requiem. 
The  traditional  separation  of  powers  has  broken  down 
for  the  simple  reason  that  it  results  only  in  confounding 
them.  Congress  may  delay  presidential  action ;  but  there 
is  evidence  enough,  even  apart  from  the  fact  of  war,  that 
it  is  finding  it  increasingly  difficult  ultimately  to  thwart 
it.  For  congressional  debate  has  largely  ceased  to  influ- 
ence the  character  of  public  opinion.  .  .  .  Nor  is  the 
individual  member  of  Congress  alone  in  his  eclipse.  The 
congressional  committees  have  become  less  the  moulders 
of  legislation  than  the  recipients  who  may  alter  its  de- 
tails. Even  on  the  committees  themselves  the  adminis- 
tration now  has  its  avowed  spokesmen.  They  seem  to 
act  very  much  as  a  British  minister  in  charge  of  a  meas- 

17  Woodrow  Wilson  "Constitutional  Government  in  the  United 
States"  (1908),  p.  66. 


POWER   TO   LEGISLATION  39 

ure  in  the  House  of  Commons.  They  interpret  the  ex- 
ecutive will ;  and  we  have  seen  recalcitrant  members  in- 
terviewed on  policy  by  the  President  himself.  The  key 
to  the  whole,  in  fact,  has  come  to  lie  in  the  President's 
hands.  The  pathway  of  decision  is  his  own,  influenced 
above  all  by  his  personal  cast  of  mind  and  by  the  few 
who  can  obtain  direct  access  to  him.  This  is  not,  it  is 
clear,  the  government  envisaged  by  the  Constitution. 
Equally  certain  it  is  not  a  government  which  meets  with 
the  approval  of  Congress.  But  outside  of  Washington, 
the  old  suspicion  of  executive  power  is  dead,  and  popu- 
lar sentiment  has  become  so  entirely  uninterested  in  the 
processes  of  politics  as  to  ask  only  for  substantial  results. 
In  such  an  aspect,  executive  action  is  far  more  valuably 
dramatic  than  the  action  of  Congress."18 

The  fact  remains,  however,  that  certain  individual 
members  of  Congress  remember  the  ancient  prestige 
of  that  body  and  deplore  its  present  subservience  to  the 
executive  branch.  In  them,  perhaps,  lies  the  best  hope 
of  deliverance  from  executive  usurpation.  A  vigor- 
ous expression  of  this  sentiment  may  be  seen  in  cer- 
tain remarks  addressed  to  the  House  by  Representa- 
tive James  L.  Slayden  of  Texas,  on  January  15,  1919, 
together  with  a  shrewd  diagnosis  of  the  situation  as 
being  due  in  no  small  measure  to  the  subordination  of 
principles,  of  individual  and  corporate  liberty  and  in- 
dependence, and  even  of  respect  for  the  Constitution 
itself  to  the  exigencies  of  party  politics.  He  asked : 

"What  is  the  cause  of  this  degradation  of  the  first- 
born of  the  Constitution  ?  In  thinking  it  over,  I  have  not 
been  able  to  avoid  the  conclusion  that  it  is  due  to  a  volun- 
tary surrender  of  constitutional  rights  and  ^  duties  that 
only  need  to  be  asserted  to  be  respected.  [Applause.] 
We  surrender  without  a  struggle  rights  that  some  of  our 

18  "The  Future  of  the  Presidency,"  The  New  Republic,  Sep- 
tember 29,  1917. 


40  RELATION    OF   EXECUTIVE 

British  ancestors  died  for.  I  have  also  reached  the  con- 
clusion that  unreasoning  partisanship  has  something  to 
do  with  this  growth  of  a  menace  to  the  rights  and  liber- 
ties of  the  people  through  breaking  down  their  representa- 
tives. .  .  .  When  devotion  to  mere  party  organization 
becomes  so  strong  that  principles  are  forgotten  and  loyalty 
to  the  instrument  of  their  application  is  regarded  as  a 
thing  of  supreme  importance,  we  have  reached  the  danger 
line.  That  view  has  grown  alarmingly  in  this  body.  I 
have  heard  members  jestingly  say  that  they  had  raped  the 
Constitution  so  often  that  one  more  outrage,  if  in  the 
party  interest,  was  of  small  importance.  To  jest  about 
the  Constitution  and  the  solemn  oath  we  all  take  to  sup- 
port and  defend  it  is  as  offensive  to  the  moral  sense  as 
making  jokes  about  a  disregard  of  truth  and  personal 
honesty.  But  these  things  help  one  to  understand  the  con- 
tempt with  which  legislative  bodies  are  treated  in  the 
press  and  by  the  public  they  serve.  Yet,  in  spite  of  this 
yielding  attitude,  I  hope  and  I  believe  that  the  Ameri- 
can Congress,  which  is  a  great  body,  representing  a 
mighty  people,  will  assert  itself  and  will  regain  its  an- 
cient standing  and  prestige."19 

19  Congressional  Record,  6sth  Congress,  3d  Session,  Vol.  57, 
page  1529. 


II 


EXECUTIVE  INITIATIVE  IN  LEGISLATION; 
ABROAD 

If  it  is  now  necessary  to  reconsider  the  theory  of 
the  separation  of  governmental  powers,  and  to  inquire 
whether  and  to  what  extent  the  executive  officers  of 
the  states  and  the  United  States  should  be  legally  ac- 
corded a  direct  participation  in  the  process  of  making 
the  laws,  by  means  of  the  right  to  initiate  and  intro- 
duce bills  in  the  legislative  assemblies,  it  will  be  useful 
to  bring  to  the  question  a  knowledge  of  the  constitu- 
tional provisions  and  parliamentary  practices,  in  this 
regard,  which  prevail  in  the  other  self-governing  coun- 
tries of  the  world. 

In  Great  Britain,  the  government  is  vested  in  the 
Prime  Minister  and  his  associates  in  the  cabinet.  They 
maintain  themselves  in  power  by  the  continuous  con- 
fidence and  support  of  the  House  of  Commons,  as 
manifested  by  their  unbroken  control  of  a  substantial 
majority  in  that  house.  Until  about  the  middle  of 
the  nineteenth  century,  the  functions  of  the  ministers 
were  chiefly  executive,  and  their  rights  in  regard  to 
the  formulation  and  support  of  legislative  measures 
were  not  widely  different  from  those  of  any  other 
member  of  Parliament.  But  following  the  Reform 
Act  of  1832,  the  necessity  of  dealing  with  the  condi- 
tions of  the  times  by  means  of  laws  of  great  and  wide- 


42  RELATION   OF   EXECUTIVE 

spread  importance,  coupled  with  the  increasing  com- 
plexity of  the  details  of  legislation,  almost  insensibly 
led  the  legislators  of  England  to  look  to  the  heads  of 
the  great  departments  of  government  (having  seats  in 
Parliament)  as  the  natural  source  and  origin  of  new 
laws,  while  the  centering  of  both  power  and  responsi- 
bility in  the  cabinet  ministers  seemed  to  set  them  apart 
as  the  proper  group  to  assume  the  framing  and  engi- 
neering of  measures  of  national  or  imperial  impor- 
tance. Thus  the  parliamentary  system  grew.  And  at 
present  the  ministers  not  only  have  a  recognized  pre- 
cedence in  the  introduction  of  bills,  but  they  have  a 
virtual  monopoly  of  the  initiative  as  respects  all  bills 
of  general  public  interest. 

"Parliament  is  still,  as  it  was  originally  intended  to  be, 
the  grand  assize  or  session  of  the  nation,  to  criticize  and 
control  the  government.  It  is  not  a  council  to  admin- 
ister it.  It  does  not  originate  its  own  bills,  except  in 
minor  matters  which  seem  to  spring  out  of  public  opinion 
or  out  of  the  special  circumstances  of  particular  inter- 
ests, rather  than  out  of  the  conduct  of  government. 
Every  legislative  proposition  of  capital  importance  comes 
to  it  from  the  ministers.  The  duties  of  the  ministers  are 
not  merely  executive ;  the  ministers  are  the  government. 
They  look  to  Parliament,  not  for  commands  what  to  do, 
but  for  support  in  their  own  programs,  whether  of  legal 
change  or  of  political  policy."1 

Nothing  in  the  British  constitution  takes  from  the 
private  member  of  Parliament  his  right  to  introduce 
a  bill  on  any  subject  he  may  please.  And  to  a  limited 
extent  his  right  is  still  in  exercise.  Projects  of  legis- 
lation originating  with  members  who  are  not  in  the 

1  Woodrow  Wilson,  "Constitutional  Government  in  the  United 
States"  (1908),  p.  84. 


POWER   TO   LEGISLATION  43 

ministry  are  called  either  "private  bills"  or  "private 
members'  bills/'  The  former  are  proposed  acts  deal- 
ing with  local  or  individual  concerns,  very  much  like 
the  private  bills  before  our  state  legislatures.  The  lat- 
ter are  measures  having  to  do  with  matters  of  general 
public  concern.  Ten  or  a  dozen  of  such  bills  may  be 
enacted  into  law  in  the  course  of  a  legislative  year. 
But  for  the  most  part  they  are  non-contentious.  It  is 
said  that  only  one  or  two  will  arouse  such  strong  dif- 
ferences of  opinion  as  to  provoke  a  demand  for  a  di- 
vision. A  private  member  with  a  bill  of  such  a  char- 
acter as  not  to  win  general  acquiescence  has  to  tread  a 
path  beset  with  difficulties.  In  the  first  place,  standing 
orders  allot  to  the  disposal  of  private  members  so 
small  a  part  of  the  time  the  House  is  in  session — not 
more  than  one-tenth  of  the  time  of  the  actual  sittings — 
that  there  is  necessarily  keen  competition  for  recog- 
nition and  opportunity  to  explain  and  defend  their 
bills.  Again,  the  course  of  parliamentary  procedure  is 
such  that  the  persistent  and  determined  opposition  of 
even  a  single  member,  especially  if  he  be  a  skillful  tac- 
tician, will  almost  invariably  block  the  passage  of  such 
a  bill.  It  results,  therefore,  that  the  British  statutes 
which  have  not  been  fathered  by  the  ministry,  but  owe 
their  origin  to  a  private  member,  are  few  in  number 
and  seldom  important  in  character;  and  that  is  be- 
coming more  and  more  noticeably  the  rule. 

The  present  situation  has  been  admirably  stated  by 
President  Lowell  in  his  authoritative  work  on  "The 
Government  of  England/'2  as  follows : 

2  Vol.  I,  p.  326. 


44  RELATION   OF   EXECUTIVE 

"To  say  that  at  present  the  cabinet  legislates  with  the 
advice  and  consent  of  Parliament  would  hardly  be  an 
exaggeration ;  and  it  is  only  the  right  of  private  members 
to  bring  in  a  few  motions  and  bills  of  their  own,  and  to 
criticize  government  measures,  or  propose  amendments 
to  them,  freely,  that  prevents  legislation  from  being  the 
work  of  a  mere  automatic  majority.  It  does  not  follow 
that  the  action  of  the  cabinet  is  arbitrary,  that  it  springs 
from  personal  judgment  divorced  from  all  dependence  on 
popular  or  parliamentary  opinion.  The  cabinet  has  its 
finger  always  on  the  pulse  of  the  House  of  Commons, 
and  especially  of  its  own  majority  there;  and  it  is  ever 
on  the  watch  for  expressions  of  public  feeling  outside. 
Its  function  is  in  large  part  to  sum  up  and  formulate  the 
desires  of  its  supporters,  but  the  majority  must  accept 
its  conclusions,  and,  in  carrying  them  out,  becomes  well- 
nigh  automatic." 

In  view  of  tendencies  in  American  government  al- 
ready pointed  out — the  increasing  control  of  the  ex- 
ecutive over  the  legislative  branch,  the  increasing  dis- 
position to  ascribe  a  sort  of  special  eminence  to  "ad- 
ministration bills/' — we  may  find  ground  for  very 
thoughtful  consideration  in  the  last  sentence  of  the  ex- 
tract just  quoted.  The  result  of  the  parliamentary 
system  is  that  the  members  of  the  majority  party  in 
the  legislature  inevitably  become  mere  automata.  They 
must  unhesitatingly  accept  and  vote  for  every  measure 
put  forward  by  the  administration.  Otherwise  they 
put  the  ministry  in  peril  and  may  precipitate  its  down- 
fall. If  they  would  continue  their  party  and  them- 
selves in  power,  they  must  let  the  ministers  do  their 
legislative  thinking.  Even  in  the  matter  of  amending 
the  cabinet's  bills  no  one  has  a  free  hand.  To  quote 
again  from  President  Lowell : 

"Following  upon  the  responsibility  for  the  introduction 
and  passage  of  all  important  measures  has  come  an  in- 


POWER  TO  LEGISLATION  45 

/  creasing  control  by  the  ministers  over  the  details  of  their 
measures.  It  was  formerly  maintained  that  the  House 
could  exercise  a  great  deal  of  freedom  in  amending  bills, 
without  implying  a  loss  of  general  confidence  in  the  cabi- 
net. But  of  late,  amendments  carried  against  the  oppo- 
sition of  the  Treasury  Bench  have  been  extremely  rare. 
In  fact  only  four  such  cases  have  occurred  in  the  last  ten 
years.  This  does  not  mean  that  the  debates  on  the  de- 
tails of  bills  are  fruitless.  On  the  contrary,  it  often  hap- 
pens that  the  discussion  exposes  defects  of  which  the 
government  was  not  aware,  or  reveals  an  unsuspected  but 
wide-spread  hostility  to  some  provision;  and  when  this 
happens  the  minister  in  charge  of  the  bill  often  declares 
that  he  will  accept  an  amendment,  or  undertakes  to  pre- 
pare a  clause  to  meet  the  objection  which  has  been  pointed 
out.  But  it  does  mean  that  the  changes  in  their  bills  are 
made  by  the  ministers  themselves  after  hearing  the  de- 
bate, and  that  an  amendment,  even  of  small  consequence, 
can  seldom  be  carried  without  their  consent.  This  is 
the  natural  outcome  of  the  principle  that  the  cabinet  is 
completely  responsible  for  the  principal  public  measures, 
and  hence  must  be  able  to  control  all  their  provisions  so 
long  as  it  remains  in  office."3 

It  must  not  be  forgotten  that  the  tenure  of  an  Eng- 
lish ministry  is  precarious,  not  fixed,  since  it  depends 
on  the  continued  support  of  the  House  of  Commons. 
The  defeat  of  any  important  government  measure  by 
a  decisive  majority  is  accepted  as  voicing  a  want  of 
confidence  in  the  ministry.  This  necessitates  the  resig- 
nation of  the  cabinet  and  the  formation  of  a  new  min- 
istry, and  perhaps  even  the  dissolution  of  Parliament 
and  an  appeal  to  the  electorate,  with  the  result  that  the 
party  returned  to  power  and  charged  to  compose  a 
ministry  is  regarded  as  having  received  a  "mandate" 
from  the  people  as  to  the  particular  measure  or  meas- 
ures which  have  been  the  subject  of  contention.  The 

8  Lowell,  "Government  of  England,"  Vol.  I,  p.  317. 


46  RELATION   OF   EXECUTIVE 

English  system,  then,  confides  a  practical  monopoly  of 
legislation  to  a  small  group  of  men  who  are  at  the  same 
time  executive  and  legislative  officers.  But  along  with 
this  power  it  imposes  on  them  a  complete  responsibil- 
ity. And  the  measure  and  mark  of  their  responsibil- 
ity is  their  prompt  retirement  from  office  if  they  fail 
correctly  to  interpret  the  will  of  the  people  as  repre- 
sented by  a  majority  in  the  House  of  Commons.  Can 
a  similar  control  of  legislation  be  prudently  or  even 
workably  intrusted  to  any  similar  group  without  an 
equal  responsibility?  In  other  words,  would  this  sys- 
tem be  fruitful  of  good  works,  supposing  the  group  of 
officers  placed  in  control  of  the  making  of  the  laws  to 
hold  office  for  a  fixed  term  of  years,  irrespective  of 
hostile  majorities,  and  to  be  irremovable  save  by  the 
almost  impossible  process  of  impeachment? 

Similar  questions  might  be  asked  concerning  the 
adaptability  to  American  institutions  of  the  parliamen- 
tary system  of  France.  The  flexibility  exhibited  in 
the  making  and  unmaking  of  ministries  in  that  coun- 
try, as  contrasted  with  the  fixed  tenure  of  American 
executives,  is  a  point  sometimes  overlooked  by  those 
who  desire  to  invest  our  President  and  our  governors 
with  the  framing  and  guidance  of  legislation.  Thus, 
it  has  been  said : 

"So  far  as  concerns  the  division  of  power  between  the 
legislature  and  the  co-ordinate  departments,  the  best  or- 
ganized government  in  the  world  today  is  that  of  the 
French  Republic.  It  is  the  European  government  which 
has  best  withstood  the  shock  of  warr  It  successfully 
performs  that  most  difficult  task  of  legislation,  the  tech- 
nical task  of  so  framing  the  law  that  it  shall  be  enforce- 
able, that  it  shall  actually  give  effect  to  the  purpose  of  the 


POWER   TO    LEGISLATION  4? 

law-maker.  It  is  a  significant  fact  that  the  legislation  of 
a  country  where  there  are  few  specific  constitutional 
limitations  upon  legislative  power,  where  there  is  little 
reliance  upon  popular  voting  and  judicial  decision  to 
check  the  flow  of  undesirable  laws,  compares  in  this  re- 
spect so  favorably  with  that  of  the  American  states.  The 
explanation  is  not  far  to  seek.  It  lies  in  the  practical 
monopoly  of  the  initiative  in  legislation  which  has  been 
acquired  by  the  executive  branch  of  the  government.  In . 
France,  all  important  measures  are  first  determined  upon 
fcijtKe  ^xecutive.  ~  They  are  ffien  drafted  and  the  grounds 
for  tfreir  'adoption  elaborated  by  administrative  officials. 
They  are  finally  introduced  into  the  legislature  on  be- 
half of  the  executive,  and  their  further  progress  super- 
vised by  its  agents/'4 

When  the  executive  of  France  is  spoken  of,  in  con- 
nection with  legislation,  it  is  not  the  President  who  is 
intended,  but  the  ministers.  In  fact,  his  position  with 
reference  to  the  ministers  of  state  is  exactly  opposite 
to  that  of  an  American  president  in  relation  to  the 
members  of  his  cabinet.  The  present  President  of  the 
French  Republic,  in  an  interesting  and  instructive  vol- 
ume on  the  government  of  his  country,  has  said : 

"Following  the  example  of  England,  in  1875,  the  Re- 
public decided  that  its  President  should  be  responsible 
only  in  the  event  of  high  treason,  and  that,  on  the  other 
hand,  the  ministers,  appointed  by  him  to  direct  the  great 
public  services,  should  be  responsible  to  the  Chambers  as 
a  solidarity  in  matters  of  general  policy  and  individually 
for  their  personal  actions.  This  division  of  responsibil- 
ities is  the  great  characteristic  of  the  constitutional  sys- 
tem which  is  today  that  of  France,  and  which  is  known 
as  the  parliamentary  system.  .  .  .  The  ministers,  in  fact, 
being  alone  responsible,  are  those  who  actually  exercise 
authority;  the  President  presides,  but  does  not  govern; 
he  can  form  no  decision  save  in  agreement  with  his  min- 

4  Professor  Arthur  N.  Holcombe,  in  The  New  Republic,  July 
7,  1917,  p.  270. 


48  RELATION   OF   EXECUTIVE 

isters,  and  the  responsibility  is  theirs.  .  .  .  The  Presi- 
dent therefore  exercises  no  power  alone.  Each  of  his 
proclamations  must  be  countersigned  by  a  minister."5 

The  third  article  of  the  Constitution  of  1875  de- 
clares that  "the  President  of  the  Republic  shall  have 
the  initiative  of  laws  concurrently  with  the  members 
of  the  two  chambers. "  But  in  practice  this  has  come 
to  mean  not  a  direct  and  personal  initiative  on  the  part 
of  the  President,  but  an  initiative  exercised  by  him  in 
conjunction  with  one  or  more  of  the  ministers,  or  per- 
haps, rather,  nothing  more  than  his  formal  assent  to 
an  initiative  exercised  by  a  minister.  For  any  pro- 
jected law  put  forward  in  the  name  of  the  President 
must  be  countersigned  by  a  minister,  and  this  minister 
must  thereafter  appear  in  person  before  the  Chambers 
to  explain  and  defend  the  measure.  The  President  has 
no  personal  access  to  Parliament  and  cannot  take  part 
in  the  debates.  It  might  easily  result  that  the  Presi- 
dent of  the  French  Republic  should  be  only  a  figure- 
head, a  mere  puppet  in  the  hands  of  his  ministers. 
Historically  it  is  the  fact  that  this  does  result  when 
he  is  a  man  of  mediocre  gifts.  It  was  Casimir-Perier 
retiring  from  office  who  said  that  he  had  been  "nothing 
but  a  master  of  ceremonies,"  and  Grevy  who  described 
the  presidency  as  merely  "an  honorable  retreat  for  an 
old  servant  of  the  country."  But  it  is  far  otherwise 
with  M.  Raymond  Poincare,  who,  bringing  to  the  ser- 
vice of  his  country  in  her  hour  of  greatest  need,  a 
burning  patriotism,  ripe  wisdom,  and  brilliant  powers 
of  mind,  has  not  failed  to  impress  the  stamp  of  his 
strong  personality  upon  her  contemporary  government. 

5  Raymond  Poincare,  "How  France  is  Governed"  (1914),  p.  172. 


POWER   TO    LEGISLATION  49 

As  in  England,  there  is  nothing  in  the  French  con- 
stitution to  deprive  senators  and  deputies  who  are  not 
members  of  the  ministry  of  the  right  to  introduce 
bills;  indeed,  it  is  explicitly  provided  that  they  shall 
have  the  initiative.  But,  as  remarked  above,  the  gov- 
ernment has  acquired  a  practical  monopoly.  A  dif- 
ferent parliamentary  course  is  followed  with  a  bill 
presented  by  a  minister  from  that  which  prevails  in 
the  case  of  a  private  member's  bill.  An  administra- 
tion bill,  countersigned  by  one  or  more  ministers,  is 
at  once  referred  to  a  commission,  composed  of  a  vari- 
able number  of  members,  who  are  instructed  to  ex- 
amine it.  But  a  private  member's  bill  is,  in  the  first 
instance,  simply  intrusted  by  him  to  the  "bureau"  of 
the  assembly,  and  is  then  submitted  to  a  commission 
known  as  the  Commission  of  Initiative,  which  decides 
whether  or  not  it  shall  be  considered.  If  it  is  to  be 
considered,  it  is  referred  to  a  second  commission, 
which  thoroughly  examines  it.  The  commissions  may 
amend  either  a  bill  presented  by  a  minister  or  one  of- 
fered by  a  senator  or  deputy.  In  either  case  they  state 
the  result  of  their  labors  in  a  report,  and  the  texts 
thus  prepared  are  then  debated  by  the  Assembly.6 

By  the  constitution  of  the  Swiss  Confederation  the 
legislative  power  is  vested  in  the  Federal  Assembly, 
which  is  composed  of  the  National  Council  and  the 
Council  of  States.  It  is  provided  that  "measures  may 
originate  in  either  council  and  may  be  introduced  by 
any  of  their  members."  "The  supreme  directive  and 
executive  authority  of  the  Confederation  shall  be  exer- 
cised by  a  Federal  Council,  composed  of  seven  mem- 
6  Raymond  Poincare,  "How  France  is  Governed"  (1914),  p.  218. 


50  RELATION   OF   EXECUTIVE 

bers,"  and  which  is  presided  over  by  the  President  of 
the  Confederation.  Also  it  is  declared  that  the  Fed- 
eral Council  "shall  introduce  bills  or  resolutions  into 
the  Federal  Assembly,  and  shall  give  its  opinion  upon 
the  proposals  submitted  to  it  by  the  councils  or  by  the 
cantons/'7  It  will  be  seen,  therefore,  that  the  £xecu- 
tive  branch  of  the  government  is  possessed  of  some- 
thing more  than  a  mere  advisory  authority,  having  a 
direct  right  of  initiative;  and  it  is  customary  practice 
for  the  legislature  to  invite  the  executive  to  prepare 
and  submit  drafts  of  bills  upon  important  subjects  of 
legislation. 

In  those  countries  of  Europe  whose  form  of  gov- 
ernment is  that  of  a  constitutional  monarchy,  the  parli- 
amentary system  prevails,  with  occasional  variations 
from  its  English  prototype.  Indeed  there  is  ground 
for  arguing  that  England's  greatest  gift  to  the  na- 
tions of  the  Continent  has  been  this  very  system,  since 
it  has  enabled  free  peoples  to  achieve  the  highest  meas- 
ure of  self-government  without  revolution  and  without 
discarding  the  forms  of  hereditary  monarchy.  In  the 
constitutions  of  those  countries,  therefore,  when  we 
find  the  right  of  initiative  in  legislation  accorded  to  the 
King,  it  is  to  be  understood  that  no  personal  and  voli- 
tional initiative  of  the  sovereign  is  intended,  but  an 
initiative  exercised  by  responsible  ministers  in  the 
name  of  the  titular  ruler,  just  as,  in  England,  the  laws 
are  still  supposed  to  be  made  by  the  King  with  the 
advice  and  consent  of  the  Lords  and  Commons. 

In  the  Netherlands,  it  is  constitutionally  provided 
that  "the  King  shall  recommend  projects  of  law  to  the 
7  Swiss  Constitution  of  1874,  arts.  93,  95,  102. 


POWER   TO   LEGISLATION  51 

States-General,  and  make  such  other  recommendations 
to  them  as  he  considers  proper.  He  shall  have  the 
right  to  approve  or  to  reject  the  laws  adopted  by  the 
States-General/'  and  "the  States-General  shall  have 
the  power  to  present  projects  of  law  to  the  King.  But 
the  initiative  in  this  regard  shall  belong  exclusively  to 
the  lower  house."8  In  Belgium,  "the  legislative  power 
shall  be  exercised  collectively  by  the  King,  the  House 
of  Representatives,  and  the  Senate.  Each  of  the  three 
branches  of  the  legislative  power  shall  have  the  right 
of  initiative.  Nevertheless  all  laws  relating  to  the 
revenues  or  expenditures  of  the  state  or  to  the  army 
contingent  must  be  voted  first  by  the  House  of  Repre- 
sentatives."9 In  Denmark,  "the  King  may  submit  to 
the  Rigsdag  projects  of  laws  and  of  other  measures."10 
In  Sweden,  "if  the  King  wishes  to  propose  a  bill  to 
the  Riksdag,  he  shall  obtain  the  opinion  of  the  Council 
of  State  and  of  the  Supreme  Court  regarding  the  mat- 
ter, and  shall  present  his  proposal,  together  with  such 
opinions,  to  the  Riksdag."11  In  Norway,  "every  bill 
shall  be  first  presented  in  the  Odelsthing  [lower  house] 
either  by  one  of  its  members  or  by  the  government 
through  a  councillor  of  state."12  By  the  constitution 
of  Italy,  "the  initiative  in  legislation  shall  belong  both 
to  the  King  and  the  two  houses.  But  all  bills  imposing 
taxes  or  relating  to  the  budget  shall  first  be  presented 
to  the  House  of  Deputies."13  In  Spain,  "the  King 

8  Netherlands,  Constitution  of  1887,  arts.  71,  116,  117. 

9  Belgium,  Constitution  of  1831,  arts.  26,  27. 

10  Denmark,  Constitution  of  1866,  art.  23. 

11  Sweden,  Constitution  of  1809,  art.  87. 

12  Norway,  Constitution  of  1814,  art.  76. 

13  Italy,  Constitution  of  1848,  art.  10. 


52  RELATION  OF  EXECUTIVE 

and  each  of  the  legislative  bodies  shall  have  the  right 
to  initiate  laws.  Laws  relating  to  taxation  and  to  the 
public  credit  shall  be  presented  in  the  first  instance  in 
the  Congress  of  Deputies/'14  And  the  constitution  of 
Japan  contains  a  provision  that  "both  houses  shall 
vote  upon  projects  of  law  submitted  to  them  by  the 
government,  and  may  respectively  initiate  projects  of 
law."15 

The  countries  of  Latin  America  offer  a  most  inter- 
esting field  for  the  study  in  which  we  are  engaged,  be- 
cause they  have  generally  tried,  in  their  constitutions, 
to  combine  the  essential  features  of  the  North  Ameri- 
can or  "presidential  system"  of  government  with  some 
important  details  of  the  European  or  "parliamentary" 
system.  That  is,  while  they  have  set  up  a  chief  ex- 
ecutive vested  with  powers  and  duties  corresponding 
with  those  of  the  President  of  the  United  States,  and 
holding  office  for  a  fixed  term  and  practically  irremov- 
able, they  have  also  bestowed  upon  him  (acting  either 
personally  or  through  his  ministers)  a  direct  access  to 
the  legislative  bodies  and  the  right  of  initiative  therein, 
with  the  necessary  result  that  his  control  over  legisla- 
tion is  always  a  factor  of  serious  importance,  and  may 
at  any  time  become  formidable.  Both  South  Ameri- 
can and  European  writers  have  seen  in  this  attempt 
to  blend  two  incompatible  systems  the  chief  cause  of 
the  conspiracies  and  revolutions  which  have  too  often 
disgraced  the  history  of  those  countries.  For,  in  their 
view,  it  leads  to  such  a  hypertrophy  of  the  executive 
power — especially  when  the  prestige  of  the  president 

14  Spain,  Constitution  of  1876,  art.  41. 

15  Japan,  Constitution  of  1889,  art.  38. 


POWER   TO    LEGISLATION  53 

and  his  most  powerful  ministers  is  based  upon  military 
exploits  or  maintained  by  the  army — as  cannot  fail  to 
be  a  constant  menace  to  the  state.  That  it  may  make 
possible  a  self -perpetuating  and  absolutistic  dictator- 
ship (benevolent  or  otherwise)  is  abundantly  shown 
by  the  history  of  Porfirio  Diaz  in  Mexico. 

The  following  may  suffice  as  a  brief  summary  of  the 
constitutional  provisions  on  this  point  to  be  found  in 
Central  and  South  America :  In  the  Argentine,  Haiti, 
and  Paraguay,  the  right  of  initiative  is  given  to  the 
members  of  the  two  houses  of  the  legislature  and  also 
to  "the  executive"  or  "the  executive  power."  In 
Chile,  "laws  may  be  initiated  in  the  Senate  or  in  the 
House  of  Deputies  upon  the  motion  of  any  member  or 
by  message  of  the  President  of  the  Republic,"  and  the 
same  provision  is  found  in  Bolivia,  with  the  additional 
requirement  that  a  bill  submitted  by  the  President 
"shall  be  supported  in  the  debates  by  at  least  one  of 
the  cabinet  ministers,  but  he  shall  have  no  vote."  In 
Costa  Rica  and  Uruguay,  in  addition  to  the  initiative 
of  the  members  of  the  legislature,  laws  may  originate 
"on  the  proposal  of  the  executive  power  through  the 
medium  of  the  secretaries  of  state."  In  Colombia  and 
Panama,  the  initiative  is  not  given  directly  to  the 
President,  but  it  is  given  to  the  cabinet  ministers  or 
secretaries  of  state.  In  Ecuador,  "the  laws,  decrees, 
and  resolutions  of  Congress  may  originate  in  either  of 
the  chambers  on  the  proposal  of  any  of  its  members, 
or  of  the  executive  power,  or  of  the  Supreme  Court  in 
so  far  as  concerns  the  administration  of  justice,"  and 
substantially  the  same  provision  is  found  in  the  con- 
stitutions of  Guatemala,  Peru,  the  Dominican  Repub- 


54  RELATION   OF   EXECUTIVE 

lie,  Salvador,  Nicaragua,  and  Honduras,  except  that  in 
the  three  last-named  countries  a  bill  may  be  introduced 
not  directly  by  the  President  but  through  a  minister  or 
secretary  of  state.  In  Mexico,  "the  right  to  originate 
legislation  pertains  to  the  President  of  the  Republic, 
to  the  representatives  and  senators  of  the  Congress, 
and  to  the  state  legislatures.  Bills  submitted  by  the 
President  of  the  Republic,  by  state  legislatures,  or  by 
delegations  of  the  states,  shall  be  at  once  referred  to 
committees.  Those  introduced  by  representatives  or 
senators  shall  be  subject  to  the  rules  of  procedure." 
Brazil  and  Cuba  have  more  directly  followed  the  ex- 
ample of  the  United  States,  and  do  not  permit  the 
direct  initiation  of  legislation  by  the  executive  or  the 
ministers. 


EXECUTIVE  INITIATIVE  IN  LEGISLATION; 
IN  THE  UNITED  STATES 

Should  the  Americanjeople  now  cast  overboard  the 
political  principle  so  jealously  insisted  on  by  their  an- 
jestOTS,  that  it  inessential  tQ  the  preservation  nf  rivil 
liberty  thatJh^fiyp^iiHvp.  and  Ipgrisl^fiy^  .pj(\wgrsjr>fjhhg 

state  shouldM^e  Jcej^t^^paiate--and,  distinct  ?     Should 


we  now  attempt  the  experiment  of  superimposing  upon 
the  present  structure  of  our  government  the  chief  fea- 
tures of  the  parliamentary  or  cabinet  system  as  prac- 
ticed in  England  and  France,  as  least  to  the  extent  of 
formally  giving  to  the  executivn  nffirorr,  nfHic  nation 
and  the  states  direct  access  to  the  legislatjve^bodies^the 
right  to  frame  and  introduce  their  own  hills,  to  clajpi 
precedence  for  administration  measures^  Jr> 


them  in  debate,  and  tn  pvppHifp  anH   wnrp  their  pas- 

sage  with  the  weight  and  power  of  the  executive  arm  ? 
It  is  very  seriously  proposed,  and  by  persons  whose 
opinions  are  entitled  to  the  highest  respect,  that  just 
this  should  be  done.  Even  so  wise  and  conservative  a 
statesman  as  ex-Governor  McCall  of  Massachusetts,  if 
correctly  quoted  in  an  interview  published  not  long 
since,1  thinks  that 

"we  cannot  amble  along  in  this  country  on  the  very 
pleasant  pathway  of  the  old  theory  of  division  of  powers, 

1The  New  York  Times,  Magazine  Section,  July  22,  1917. 


56  RELATION   OF   EXECUTIVE 

so  that  one  organ  of  government  vetoes  another  and  we 
have  difficulty  in  getting  anywhere.  In  a  crisis  like  the 
present,  when  the  safety  of  the  country  depends  on  the 
promptest  possible  action  in  preparation  for  war,  a  min- 
istry responsible  to  an  elected  assembly  would  bring  for- 
ward the  measures  that  in  its  judgment  are  required; 
and  while  these  measures  would  be  open  to  debate  and 
amendment,  they  would  be  pressed  to  a  speedy  conclusion 
and  there  would  not  be  the  dawdling  that  has  been  wit- 
nessed at  Washington.  Debate  is  a  good  thing,  and 
ample  opportunity  should  be  given  for  it;  but  the  ex- 
pansion and  dilution  of  individual  views  do  not  inevit- 
ably throw  light  on  questions.  The  administration  meas- 
ures in  times  like  these  should  not  only  have  a  right  of 
way,  but  a  really  efficient  system  of  government  would 
provide  that  a  decision  might  be  obtained  in  something 
like  a  reasonable  time." 

Disclaiming  any  intention  to  advocate  the  substitu- 
tion of  the  British  cabinet  system  of  government  for 
our  present  form,  Mr.  McCall  added : 

^"1  think  we  should  have  something  in  the  development 
of  our  system  that  would  give  to  an  administration  the 
right  to  present  its  policies  in  an  authoritative  manner, 
so  far  as  the  administration  is  concerned,  anefthe  inter- 
ests of  the  people  would  require. that  these  policies  should 
n  ^  be  either  approved  or  disapproved  by  Congress  season- 
ably, so  that  they^vould  not  become  obsolete  or  of  very 
much  less  importance  on  fl,cc,pnfit  ^>f  th^  long-  de!a^7~~ I 
limik  there  has  been  too  much  individualism  at  Wash- 
ington. The  right  of  individual  members  of  a  legislative 
body  should,  of  course,  yield  to  the  general  right  and 
needs." 

The  questions  propounded  above,  as  to  changes  in 
our  legislative  methods,  are  not  merely  of  academic  in- 
terest; they  are  of  immediate  practical  importance. 
And  as  a  matter  of  fact,  in  the  national  government,  a 
disposition  which  grew  into  a  tendency,  and  a  tendency 
4y  which  grew  into  a  habit,  have  already  brought  about 


POWER   TO    LEGISLATION  57 

the  establishment  of  something  very  like_  the^parH- 
amentary  system  of  executive  initiative  and  control  of 
bills,  not  so  much  in  substitution  for  the  methods  con- 
H[FmpIated  bythe  Constitution  as"m~addition  to  them. 
Today  it  is  not  at  all  an  uncommon  practice  for  a  legis- 
fpttive  measure,  complete  in  all  its  jtetails,  to  be  draTted 
by  the  head  of  an  executive  department,  or  even  by 
tEe'Ffesident  or  under  his  personal  direction,  and  su5-  ; 
mitted  to  Congressthrough  the  chairman  of  the  ap- 
propriate committee  or  some  other  member  known  to  '' 
be  'ia'Tupp'orfer^of  theT(lmintgtratrDT^-"and  to-be-fob' 
lowecTup  b/^ucE^3cecufive"  pressure  as  will  secure  its 


proper  referencgaji^^ 
If  has  been  said: 

"In  the  United  States  the  failure  openly  to  give  to  the 
President  constitutional  powers  by  the  exercise  of  which 
he  can  influence  the  passage  of  legislation  and  the  adop- 
tion of  policies,  has  naturally  led  to  the  development  of 
somewhat  secret  and  indirect,  if  not  underhand,  methods. 
The  President  cannot  introduce  a  bill  into  Congress.  But 
there  is  nothing  to  prevent  him  from  having  a  bill  drawn 
and  inducing  one  of  his  supporters  in  Congress  to  in- 
troduce it.  The  President  has  no  power  to  send  a  rep- 
resentative of  the  administration  to  participate  in  the  de- 
bates of  Congress.  But  members  of  the  administration 
are  often  heard  by  the  committees  of  Congress  to  which 
bills  are  referred,  and  the  President  may  easily  persuade 
some  member  of  the  legislature  to  be  his  spokesman  on 
the  floor  of  either  of  the  houses."2 

These  facts  are  familiar  to  everyone  who  reads  the 
newspapers,  though  it  may  be  doubted  whether  many 
of  us  realize  the  extent  to  which  the  habit  has  grown. 
That  it  may  be  seen  in  practice,  though  not  in  its  full 

2  Frank  J.  Goodnow,  "Principles  of  Constitutional  Govern- 
ment," p.  121. 


58  RELATION   OF   EXECUTIVE 

extent,  attention  is  invited  to  the  following  extracts 
from  the  daily  press,  which,  however,  do  not  pretend 
to  be  a  list  or  catalogue,  but  only  a  few  illustrations 
culled  out  of  many  : 

"At  the  request  of  the  War  Department  today  Chair- 
man Chamberlain  of  the  Senate  military  committee  intro- 
duced a  bill  for  the  registration  for  military  duty  of  all 
ment  who  have  become  twenty-one  years  old  since  the 
draft  law  went  into  effect.  Another  bill  which  Senator 
Chamberlain  introduced  at  the  request  of  the  adminis- 
tration would  provide  for  furloughing  National  Army 
men  for  harvesting  crops  and  other  agricultural  duty." 

Again  :  "An  administration  bill  authorizing  the  Presi- 
dent to  suspend,  modify,  or  annul  sentences  and  orders 
of  military  courts-martial  was  submitted  yesterday  by 
Secretary  Baker  to  Chairman  Chamberlain  of  the  Senate 
military  committee."  On  another  occasion,  "Representa- 
tive Adamson  introduced  with  amendments  the  Presi- 
dent's bill  to  authorize  preferential  food  shipments  by 
rail  and  water."  So  again:  "The  Overman  bill,  pre- 
pared by  the  President  or  at  his  direction,  and  sent  from 
the  White  House  to  the  Capitol,  is  a  proposal  to  Congress 
to  abdicate  during  the  period  of  the  war  and  for  one  year 
after  the  war."  And  again  :  "Personal  interest  of  Presi- 
dent Wilson  in  the  clause  in  the  espionage  bill  authoriz- 
ing him  to  embargo  exports  was  disclosed  today  during 
debate  on  the  bill  in  the  Senate.  A  letter  from  the  Presi- 
dent to  Chairman  Culberson  of  the  Senate  judiciary  com- 
mittee, submitting  a  draft  of  the  bill  and  urging  its  con- 
sideration, was  produced  and  read." 

And  a  prominent  member  of  the  House  of  Repre- 
sentatives is  reported  to  have  said  in  debate  recently  : 

/     "The  fashion  has  been  growing  of  late,  particularly 
when  bills  of  major  importance  are  being  considered  in 
/this  House,  that  their  sponsors  rest  their  main  ground 
"i  of  defense  ofTRe  Uiovisluns  of  these  Dills  upon  the  propo-^ 
/  sition  that  they  were  drafted  in  some  executive  deparp 
ment.    'ihings  have  come  to  a'  preliyi>'^5^in"-thircotintry 


/ 


POWER   TO    LEGISLATION  59 

if  legislation  is  to  be  simply  a  matter  of  executive  order, 
if  committees  of  this  House  are  to  be  a  mere  registering 
machine  for  the  will  of  the  executive.  For  one,  I  believe 
that  the  time  has  come  to  definitely  impress  upon  the 
executive  and  upon  the  tfD'Ulltry  that  we  propose  to  do"" 
some  thinking  for  ourselv&j,  thai  we  piupose  lu  scrutinize 

rii^iQiy  nit  ic^isiciLivc  JJJL  vjjjOodlo  sent  to  US  num  LUC  ULUCI 

fegTotJhe  Ayenue,~and  to^enacl  LhenrwMi  such  addi- 
'tions,  subtractions"  or  altefatiMs"as"7eem  best  to  us.  acf- 
jng  in  the  capacity  imposed  upoifus  by  the  Constitution^ 
"in  short,  that  we  propose  to  conduct  ^purs-elves  asjthe 
legislative  representatives  of  the  American  people,  and 
not  simply  as  the  amanuenses  ol  those  holding  executive 
office." 

So  much  for  the  initiation  of  administration  bills. 
But  the  executive  does  not  abandon  a  favorite  project 
at  the  threshold  of  the  legislative  chamber.  On  the 
contrary,  Jhg  is  quite  actively  interested  in  its  further 
fortunes  and  brings  to  bear  many  processes^  influ- 
ence and  persuasion  to  insure  its  Apartment..  In  the 
irst  place,  the  administration's  proposal  that  a  par- 
ticular law  should  be  passed  jmay  and 


a  much  stronger  form  than,  the  mp.re..  "rprnminenHa.-_ 
tion  intended  by  the  Constitution.  The  members  of 
Congress  may  be  assured,  by  message  or  letter,  as 
sometimes  they  have  been,  that  the  measure  in  question 
is  "absolutely  necessary"  To  the  accomplishment  of 
some  purpose  as  tp  whosellesirability  there  can  be  no 
possible  dispute.  "  /Or,  in  the  converse  case,  private  ini- 
tiative may  b<?  rrferlfprl  hy  a  frank  expression  of  stern 
disapproval  from  the  presidential  mansion.  Again, 
whatever  may  have  been  the  antique  practice  of  a  mu- 
tual and  dignified  aloofness,  the  modern  American^ 
President  is  in  constant  and  ****  rnmtrmnication  with 
the  chairmen  ofimportant  committees  in  both  houses, 


60  RELATION    OF   EXECUTIVE 

with  the  parliamentary  leaders  of  the  party,  with  his 

-  individual  friends  a!1(1  fiiippnrt-prSj  and  PvprrwTfVTflirv^ 

who_are_most  jaanspiaions  in  t^^irnppaiitiQn  to  his 


__ 

olicies!  It  has  become  a  common  practice,  no  longer 
exciting  surprise  or  even  comment,  for  the  President 
to  summon  influential  members  of  either  Jiouse__to^a 
conference  at  the  White  House,  nor_i_s  it  a  secret  that 
tHe  purpose  is  to  settlejthe__details  of  an  administra- 
tion  bill  or  to  concert  ways  and  means  for  securing  its 
passage,  or  perhaps  to  block  the  pathway  of  independ- 
ent insurgents.  NoFTiave  the  occasions  been  infre- 
quent in  which  the  President  has  himself  gone  to  the 
room  set  apart  for  him  at  the  Capitol  and  there  sum- 
moned to  his  presence  Senators  or  Representatives 
whose  strong  opposition  threatened  disaster  to  some 
favored  measure.  The  object  of_such  interviews  is 
of  course  the  taking  of  common  counsel  for  the  wef- 
2^  Tare  ofTEe~country.  But  is  it  not  the  case  that  when 
the  legislators  return  to  their  seats,  their  votes  reflect 
the  wishes  of  the  executive? 

Ttgain,  always  supposing  that  presidential  insistence 
upon  the  enactment  of  particular  bills  or  provisions  is 
recognized  as  constitutionally  within  the  functions  of 
the  executive,  what  could  be  more  natural  than  that  he 
should  employ  his  most  trusted  friends  and  advisers, 
the  members  of  the  cabinet,  as  his  advocates  before 
Congress?  As  a  matter  of  fact,  recent  Presidents 
have  not  hesitated  to  do  so.  It  may  be  appropriate  to 
quote  one  or  two  events  of  late  occurrence,  not  at  all 
in  the  way  of  hostile  criticism,  but  simply  as  illustra- 
tions of  this  system  in  its  actual  operation.  In  the 
news  columns  of  a  leading  newspaper  we  read  the  fol- 
lowing : 


POWER   TO   LEGISLATION  61 

"The  influence  of  President  Wilson's  approval  of  the 
newspaper  censorship  section  of  the  espionage  bill  failed 
to  save  it  in  the  House  today,  and  it  was  stricken  from 
the  bill  by  a  vote  of  220  to  167.  The  vote  came  after  ad- 
ministration leaders  had  fought  for  the  section  under  a 
hot  fire  of  attack,  and  Chairman  Webb  of  the  judiciary 
committee  had  told  the  House  he  had  just  heard  from 
President  Wilson  that  the  section  was  necessary  to  the 
defense  and  safety  of  the  country .y  Postmaster  General 
Burleson,  who  often  visits  the  Capitol  to  round  up  sup- 
port for  administration  measures,  made  a  futile  attempt 
to  get  enough  support  for  the  censorship  section.  .  .  . 
Representative  Webb  did  everything  in  his  power  to 
rally  to  his  support  enough  votes  to  give  the  administra- 
tion almost  unheard-of  power  in  proclaiming  what  may 
or  may  not  be  published.  Postmaster  General  Burleson 
was  in  the  corridors  and  lobbies  of  the  House  for  several 
hours  today  in  a  vain  attempt  to  preserve  the  censorship 
section  by  telling  members  on  both  sides  of  the  House 
that  the  administration  absolutely  demanded  it."3 

In  a  parallel  case  of  somewhat  later  date,  an  Asso- 
ciated Press  despatch  carried  the  following  account  of 
certain  proceedings  in  the  Senate : 

''Opponents  of  the  Overman  bill,  to  authorize  the 
President  to  reorganize  government  departments  and 
agencies  for  the  war  period,  opened  their  attack  today  in 
the  Senate.  .  .  .  While  Senator  Reed  was  speaking, 
Postmaster  General  Burleson,  who  took  the  Overman 
bill  to  the  Capitol  the  day  it  was  introduced,  appeared  in 
the  President's  room  just  outside  the  Senate  chamber, 
and  conferred  with  a  number  of  supporters  of  the  meas- 
ure. Referring  to  Mr.  Burleson's  visit,  the  Missouri 
Senator  declared  he  would  not  object  to  replying  to 
cabinet  members'  arguments  if  they  were  made  on  the 
floor  of  the  Senate  rather  than  in  whispered  conversa- 
tions in  the  cloak  rooms." 

Finally,  anyone  who  seeks  the  causes  of  the  Presi- 
8  The  Washington  Evening  Star,  May  4,  1917. 


62  RELATION   OF   EXECUTIVE 

dent's  ascendancy  over  Congress  should  not  overlook 
his  negative  upon  laws  which  he  disapproves. 

"The  veto  power,"  it  has  been  well  said,  "taken  in  con- 
nection with  the  message  and  the  appointing  power,  is  an 
effective  political  instrument  in  the  hands  of  the  Presi- 
dent. By  using  a  threat^of  the  veto  he  may  secure  the 
passage  of  b}lls_jKhi^  '  - 


times,  in  consideringjmpgrtant  mgasuTes7~Congress  must 
jceep  in  view  the  possible  action  of  the~Tresident,~*gspe- 
nally  where  it  .j.a  n  party  question  ~an0.  tUlft .  cnrjrerir  arri- 
tucTe  before  the  country  is  indispensable.  Mr.  Roosevelt 
even  went  so  far  as  to  warn  Congress  publicly  that  he 
would  not  sign  certain  measures  then  before  that  body, 
and  raised  a  storm  of  protest  from  those  who  said  that 
he  should  not  veto  a  bill  until  it  was  laid  before  him/'4 

In  fine,  the  recital  of  the  foregoing  considerations 
will  have  been  futile  indeed  if  the  reader  is  not  now 
prepared  to  agree  with  the  statement  that  a  legalized 
practice  of  admitting  executive  officers  directly  to  the 
legislative  body  would  "make  unnecessary  those  sub- 
terranean relations  between  the  two  branches  which 
inevitably  spring  up  when  official  lines  of  communica- 
tion are  forbidden."5 

For  the  real  and  ultimate  question  is,  shall  these  sub- 
:erranean,  underhanj,  anH  extra-constitutional  meth- 
ods be  legalized  or  shall  they  Jbejibandoned  ? 

It  is  difficult  to  reverse  an  evolutionary  process,  and 

what  we  have  been  describing  appears _to  be  a  true 

political  evolution.     If  so,  eyen  the  incumbency  of  a 

,     President  who  shouldjkgggjbimself  ^trictly^yithin  the 

>v    b2un<^£LJ^  On  its  spirit  and  meaning 

no  less  than  its  letter)  would  be  no  more  than  an  inter- 

4  Charles  A.  Beard,  "American  Government  and  Politics,"  p. 
204. 

5  "Municipal  Research,"  May,  1915,  p.  75. 


POWER   TO   LEGISLATION  63 

ruption  of  a  practice  which  his  successor  would  very 
TIfceljMresume  and  carry  to  even  greater  lengths.  For 
there  is~nothing  in  the  text  of  the  Constitution  which 
Torbids  the  President  to  dominate  Congress.  There  is 
nothing  to  forbid  him  to  write  out  with  his  own  hand 
the  complete  draft  of  a  bill  and  send  it  to  a  friend  to 
be  introduced  in  the  Senate  or  the  House.  There  is 
nothing  to  prevent  him  from  exerting  every  penny- 
weight of  his  prestige,  his  personal  influence,  and  his 
political  power  in  favor  of  its  enactment.  There  is 
nothing  unlawful  in  his  sending  his  ministers  to  the 
field  of  legislative  battle.  There  is  nothing  to  prevent 
him  from  laying  out  a  program  for  the  legislature  to 
follow.  There  is  nothing  to  restrain  him  from  bend- 
ing the  frown  of  his  disapproval  upon  individual  ini- 
tiative. In  short  (be  it  said  without  disrespect)  there 
is  nothing  to  withhold  him  from  being  the  most  august  * 
and  powerful  ot  all  lobbyists,  and  the  most  successful. 
Even  if  couSLiLuliuiial  warrant  againal  suiiic  tnTafijTof 
these  practices  could  be  found,  one  can  hardly  see  how 
the  matter  could  be  brought  to  the  arbitrament  of  the 
courts. 

To  these  tendencies  and  practices  there  is  nothing 
to  oppose  but  the  remonstrances  of  individual  members 
of  Congress — which  are  sonorous  but  ineffectual— -or 
the  general  disapproval  of  the  people  of  the  country. 
If  such  a  sentiment  were  ever  to  be  aroused,  it  would 
require  suchji  change  of  heart  in  the  American jgublic   «3 // 
that  they  would  cease  to  magnify  the  presidential  office, 
and  no  longer  exalt  the  President  as  the  nation's 
jeader,  but  restore  the  guardiaj^ip_of^ 
fare  to  its  original  custodians,  the  members  of  the 


64  RELATION   OF   EXECUTIVE 

Congress,  taking  care  to  select  such  representatives  as 
""would  ablyUnd  conscientiously  fuHfiHheir^fcfttst.  But 
the  American  people,  with  the  watchword  "efficiency" 
forever  ringing  in  the  air,  demand  only  results  J^oni 
their  government.  To  methods  and  piw^sfrs  tVy  ar** 
suElimely  indifferent. 

It  may  be  thought  that  this  view  is  unduly  pessi- 
mistic. It  is  not  meant  to  be  denied  that  there  are  alert 
sentinels,  here  and  there,  to  cry  the  alarm.  ^  And  some 
of  them  believe  that,  not  their  voices  alone,  ^but  the 


daily  spectacle  of  executive  power  in  action,  _Jhas_  j>o 
far  impinged  upon  the  consciousness  of  their  fellow 
citizens  as  to  awaken  at  least  a  feeling  of  deep  con- 
cern! Thus,  Protessor  Henry  Jones  Ford  writes  : 

"The  most  dangerous  feature  of  the  situation  is  the 
present  attitude  of  public  opinion.  The  behavior  of  Con- 
gress is  a  chronic  grievance,  but  it  does  not  produce  ac- 
tion  at  all  commensurate  with  the  feeling  that  exists  about 
the  matter.  This  singular  lethargy  is  due  to  the  fact  that 
resentment  of  congressional  behavior  is  overshadowed  by 
uneasiness  over  the  portentous  growth  of  presidential 
authority.  People  view  with  dismay  the  possibilities  of 
abuse  of  such  vast  powers  as  are  accumulating  in  the 
hands  of  the  President.  They  feel  disposed  to  endure 
much  from  Congress  in  consideration  of  the  fact  that  it 
appears  to  be  a  rival  power,  and  in  the  belief  that,  badly 
as  it  behaves  in  particulars,  it  serves  as  a  counterpoise  to 
the  aggrandizement  of  the  presidential  office.  The  same 
view  is  held  in  Congress,  and  members  who  acknowledge 
that  its  powers  are  scandalously  abused  are  yet  disposed 
to  put  up  with  anything  rather  than  do  anything  that 
might  weaken  those  powers.  This  view  of  the  case  is 
plausible,  but  it  is  quite  mistaken.  It  is  true  that  the 
power  of  the  President  has  increased  and  is  increasing 
at  a  tremendous  rate;  but  the  constitutional  aspect  of 
the  case  is  quite  different  from  what  is  commonly  sup- 
posed. The  great  expansion  of  the  presidential  function 


POWER   TO   LEGISLATION  65 


js_  going  on  outside  of  the  formal  Constitution,  by 

*Q!  his  entorced  activity  as  lobbyist  and  promoter.    Jiis 

at^honty  within  the  bounds  of  the  Constitution  has  not 
jncreaseoat  alT,  but  has  in  facT^BeefTTdiminisHed  by  con- 
"p^ssToHaTencroachment,  and  that  is  the  true  source  of 

actual  peril  to  constitutional  government."8 

Precisely  because  all  this  is  going  on  outside  the  for- 
mal Constitution,  it  would  require  no  change  in  the 
fundamentaHaw  either  to  abandon  it  or  to  legalize  it.  ^  H 
No  constitutional  amendment  would  be  necessary  to 
render  legal  and  formally  regular  an  even  greater  presi- 
dential control  over  legislation  than  is  now  practised  in 
a  somewhat  furtive  and  unacknowledged  manner.  It  is 
correctly  said  by  Professor  Ford,  at  the  conclusion  of 
the  article  from  which  the  foregoing  quotation  is 
taken  : 

S  "This  is  a  matter  which  rests  with  Congress,  and  it  js_ 
upon  Congress  that  the  pressure  of  public  opinion  stipulcf  ' 
tg  exerted  to  compel  sucn  changes  in  theTujes  as  will  in-     3  +j 
produce  constitutional  government.    In  practice  thia  would 
Tnean  that  the  President's  recommendations  would  be  pre- 
sente^To"  Congress  in  the  form  ot  bills  drafted  by  ex-' 
pefis7~Tntorniecl  by  administrative  Oxpei  ienu;  and  acting  ' 
responsibility.     The  present  liielhud  al- 
" 


be  dratted  according  to  the  views  of 
irresponsible  committees  acting  under  the  guidance  of 
particular  interests  and  upon  calculations  of  factional  ad- 
vantage. The  sinister  results  of  which  this  process  is 
capable  are  displayed  by  the  legislative  record  of  every 
session.  The  situation  has  become  so  intolerable  that 
some  decisive  treatment  of  it  is  inevitable." 

In  another  paper,  the  same  author  has  expressed 
himself  still  more  explicitly,  as  follows : 

"The  fact  is  well  known  that  the  policy  of  the  admin- 
i.stration  is  the  master  force  that  advances  measures  and 

6  "The  Growth  of  Dictatorship,"  in  The  Atldtltiu  Monthly, 
May,  1918. 


66  RELATION   OF   EXECUTIVE 

brings  them  to  determination^  Well,  then,  let  it  be  so; 
""but  is  there  not  fOOiii  f oF  improvement  ?  At  present  the 
process  goes  on  in  the  dark.  Conflicting 'and  vague  ac- 
counts reach  the  public  of  conferences  with  party  leaders, 
of  negotiations  with  committees,  of  caucus  action,  of  con- 
cessions and  adjustments  to  placate  dissident  factions,  of 
delays,  obstructions,  exactions  and  demands  which  must 
be  dealt  with  to  obtain  action.  It  is  a  dark,  confused 
hubbub  -of  activity,  the  particular  elements  of  which  can 
never  be  clearly  discerned  by  the  public,  nor  can  the  ex- 
tent of  their  respective  participation  in  what  is  done  be 
computed.  Moreover  it  appears  that  Congress  itself  is 
not  much  better  situated  for  knowing  just  what  is  taking 
place.  Enactments  may  contain  features  of  which  Con- 
gress was  not  aware  in  passing  them,  their  presence  be- 
ing due  to  private  opportunity  supplied  by  the  darkness  in 
which  bills  take  their  final  shape.  '  Notorious  instances 
'of  this  occurred  during  the  last  session  of  Congress.  Is 
not  this  darkness  a  genuine  grievance  that  calls  for  re- 
dress? What  improvement  could  be  more  natural  and 
desirable  than  to  bring  the  process  out  of  darkness  into 
light?  The  specific  demand  for  improvement  in  legis- 
lative procedure  need  therefore  go  no  further  than  this : 
that  the  administration  shall  propose  and  explain  all  its 
measures — the  bills  and  the  budget — openly  in  Congress 
and  fix  the  time  when  they  shall  be  considered  and  put 
to  vote.  That  is  all,  no  more  and  no  less.  Aside  from 
those  particulars,  the  existing  deposit  of  authority,  both 
with  the  President  and  with  Congress,  will  remain  unim- 
paired. There  will  be  no  change  whatever  except  this 
one  change  caused  by  making  the  administration  do  open- 
Iy  and  publicly  what  it  now  does  hiddenly  and  privately. 
Undoubtedly  this  one  change  will  breed  more  change,  but 
that  will  come  spontaneously  under  the  prompting  of 
party  convenience.  Just  what  form  the  adjustments 
will  eventually  assume  cannot  be  anticipated,  an.d  specu- 
on  on  this  point  is  sheer  futility.  All  that  jt  is  safe  to 
sayris  that  it  will  not  be  the  parliamentary  tygeof  gov- 
ernment as  in  England!  The  definite  term  a^Tlhe  in- 
dependent authority  of  the  presidential  office  is  a  solid 
circumstance  that  will  condition  all  our  constitutional  de- 


r 


POWER   TO   LEGISLATION  67 

velopment.  The  eventual  type  will  probably  differ  from 
any  existing  type  of  government.  It  will  be  a  distinctly 
American  type,  the  product  of  our  own  needs  and  ex- 
periences/'7 

A  similar  opinion  has  recently  been  expressed  by 
Professor  Freund. 

"It  is  not  uncommonly  urged  at  the  present  time  that 
executive  officers  be  given  a  right  to  appear  on  the  floor 
of  the  houses  of  the  legislature  and  to  participate  in  de- 
bate. It  would  not  be  a  much  more  radical  step  to  give 
the  chief  executive  a  right  to  introduce  bills.  He  has 
now  by  all  constitutions  the  right  to  recommend  legisla- 
tion,  and  as  a  matter  of  power  there  is  no  reason  why  he 
should  not  present  his  recommendations  in  the  form  of 
bills.  This  would  not  give  the  measure  recommended 
the  parliamentary  status  of  a  bill,  and  as  a  matter  of 
politics,  might  prejudice  it;  but  to  give  it  such  a  status 
would  not  even  require  a  constitutional  amendment;  a 
house  rule  would  be  sufficient.  As  a  matter  of  fact,  the 
chief  executive  can  readily  find  members  to  bring  in  bills 
known  to  have  come  from  him  and  spoken  of  as  admin- 
istration bills,  and  they  have  been  officially  recognized  as 
such  by  house  rules,  but  their  status  would  gain  if  the 
executive  would  formally  appear  as  their  sponsor."8 

President  Wilson,  also,  some  ten  years  ago,  observed 
that  ,there_js  no  reason  to  beJiVvp  ^ar  ^p  fr^mprs  nf  . 


"meant  actuallvto  exclude  the  President  Jrom  all  jnti- 
pCTSffn^^  with  the  houses  in  session. 

doubt  the  President  Md  the  members  of  his  cabinet 
could  with  perfect  legal  propriety,  and  without  any 
breach  of  the  spirit  of  the  Constitution,  attend  the  ses- 
sions of  either  the  House  or  the  Senate  and  take  part  in 
their  discussions,  at  any  rate  to  the  extent  of  answering 
questions  and  explaining  any  measures  which  the  Presi- 

7  Henry  Jones  Ford,  "A  Program  of  Responsible  Democracy," 
in  American  Political  Science  Review,  August,  1918,  p.  494. 

8  "Standards  of  American  Legislation,"  p.  291. 


68  RELATION   OF   EXECUTIVE 

dent  might  see  fit  to  urge  in  the  message  which  the  Con- 
stitution explicitly  authorizes  him  to  send  to  Congress."9 

And  another  student  of  American  government,  in 
discussing  the  subject  has  said: 

"Instances  are  not  wanting  of  the  transmission  to 
Congress,  by  the  executive,  of  drafts  of  bills,  with  a 
recommendation  for  their  enactment.  As  Professor 
Burgess  states,  there  is  full  constitutionafwarrant  for 
"the  construction  and  presentation  of  regular  bills  and 
projects  of  laws  to  Congress  by  the  President]  ThaOns 
recommendations  are  not  so  presented  has  explanation  in 
the  fact  that  there  exist  no  'executive  organs  for  pre- 
senting, explaining,  defending,  and  in  general  managing 
such  government  bills  in  Congress/  JThis  custom  of  ini- 
tiatinff_ajid  jromoting-  legislation  m^this  manner  nngtit 
Have  grown  up  under  our  Constitution^  Says  Professor 
Woodfiufn  T  Vlf  Hamilton,  in  ^elen^Eig  his  financial  meas- 
uresbefore  Congress  in  1790.  hacLappeared  in 

report,  it  is 


tEe  precedent  might  have  b^pn  ff^flj^j^j^ 
ministers_might  have  been  allowed  the  privilege  of~3e- 

1    fenHirup-  their  measures  orTthe  floor  of  either  house.*""10 

"      — 
Arguments  are  not  wanting  in  favor  of  conceding  to 

the  executive  branch  of  the  government  the  formal 
right  to  initiate  and  introduce  bills,  particularly  if  we 
take  into  account  the  inevitable  result  of  such  a  con- 
cession, namely,  that  the  executive  will  sooner  or  later 
come  to  have  a  virtual  monopoly  of  the  initiative.  In 
the  first  place,  it  would  render  possible  the  carrying 
,-2>  >>  out  of  a  definite  program  of  legislation  _for_  each  Con- 
gress or  each  session  of  Congress.  Under  the  present 
'System,  arTenormous  number  of  bills*  are  annually  cast 
into  the  hopper,  the  committees  are  overburdened,  the 
calendars  are  crowded,  there  is  jostling  and  scrambling 

9  "Constitutional  Government  in  the  United  States,"  p.  201. 

10  Finley,  "The  American  Executive,"  p.  201. 


POWER   TO    LEGISLATION  69 

for  precedence,  unworthy  methods  of  recruiting  sup- 
""P&rt'for  favorite  measures  are  brought  into  play,  and 
the  device  ot  special  rules  is  resorted  to  for  the  puK 
pose  ot  cutting  down  opposition  or  choking  criticism. 
"Only  the  great  appropriation  bills  are  sure  Jo  pass,~and 
fffese  are  sometimes  encumjpen^^ 
vant  "riders."  The  task  of  sifting  the  mass  of  legis- 
"lati veTpro j ects  and  sorting  out  a  limited  number,  with 
the  determination  that  they  must  be  enacted  before  the 
close  of  the  session,  is  at  present  very  imperfectly  per- 
formed by  "steering  committees"  in  the  two  houses, 
and  not  without  a  view  to  the  political  prosperity  of 
the  dominant  party.  Another  advantage  could  be 
found  in  the  elimination  of  a  system  which  permits, 
and  incfeed  encourages,  the  wasteful  duplication  of 
"bills  on  the  same  subject.  When  public  attention  is 
"focussed  upon  some  state  of  affairs  which  seems  to 
require  regulation  by  act  of  Congress,  it  is  no  uncom- 
mon thing  for  half  a  dozen  or  more  bills  to  be  offered 
in  the  House  and  perhaps  two  or  three  in  the  Senate, 
all  differing  in  details  and  to  a  certain  extent  in  their 
general  principles.  These  are  all  referred  to  the  ap- 
propriate committees ;  each  committee  attempts  to  har- 
monize or  consolidate  the  measures  before  it,  and, 
generally  failing  in  this,  the  committee  drafts  and  pre- 
sents a  new  bill;  these  are  passed  in  the  two  houses, 
but  are  so  dissimilar  as  to  require  a  conference;  and 
not  infrequently  the  conference  committee  draws  up 
what  is  substantially  a  new  bill,  and  this -is  finally  en- 
acted. All  this  could  be  avoided  if  an  administration 
bill,  exempt  from  competition  with  privately  initiated 
measures  on  the  same  subject,  were  introduced,  simul- 


70  RELATION    OF   EXECUTIVE 

|aneously  and  in  identical  language,  injh^wojiouses. 
Suctt  a  system  would  also  reduce  the  number  of  pro- 
jects  to  be  placed  betore  the  legislature,  increase the 
relative  importance  of  those  scheduled  for  considera- 
tion,  concentrate  and  solidify  the  opposition,  and  avoid 
~the  occurrence  of  those  legislative  freaks  (not  un- 
/  known  in  Congress,  though  more  common  in  the 
states)  which  arouse  the  disrespectful  and  injurious 
derision  of  the  public. 

And  there  is  no  doubt  whatever  that  the  technique 
of  bill-drafting  would  be  greatly  improved.  That 
there  is  ample  room  for  improvement  could  be  shown 
with  ease  from  almost  any  volume  of  the  Statutes  at 
Large.  But  one  or  two  illustrations  will  suffice.  Let 
it  be  remembered,  for  instance,  that  the  Bankruptcy 
Act  of  1898  contains  two  clauses  relating  to  the  same 
subject  which  the  courts  have  pronounced  absolutely 
repugnant  and  irreconcilable.  One  clause  was  con- 
tained in  the  bill  as  originally  passed  by  the  House, 
and  the  other  in  the  bill  as  originally  passed  by  the 
Senate,  and  both  were  retained  by  the  conference  com- 
mittee which  settled  the  terms  of  the  statute  in  its 
final  form,  and  consequently  passed  by  both  houses 
without  adverting  to  the  conflict  between  them.  Again, 
it  will  not  have  been  forgotten  that  the  Income  Tax 
Act  of  1913  was  one  of  the  crudest  pieces  of  legisla- 
tion known  in  our  history,  being  singularly  infelicitous 
in  its  language,  confused  in  its  arrangement,  and  in 
places  entirely  unintelligible. 

This  subject  has  been  remarkably  well  elucidated  by 
Professor  Freund,  in  a  recent  notable  volume,  from 
which  we  quote  as  follows: 


V 
POWER   TO   LEGISLATION  r  71 

"The  striking  difference  between  legislation  abroad  and 
in  this  country  is  that  under  every  system  except  the 
American  the  executive  government  has  a  practical  mo- 
nopoly of  the  legislative  initiative.  In  consequence,  the 
preparation  of  bills  becomes  the  busMess  ot  government ~~ 
"officials  responsible  to  ministers,  these  government  om- 
jials  being  mainly,  it  not  exclusively,  employed  in  cbn- 
jtructive  legislative  work.  In  France  and  Germany,  the 
government  initiative  ol  -fegislation  has  been  established 
for  a  long  time,  and  the  right  of  members  to  introduce 
bills  is  hedged  about  and  practically  negligible.  There 
are  two  main  reasons  why  executive  initiative  should" 
leacT  to  a  superior  legislative  product.  The  one  is  thatTT 
is  the'  inevitable  ettect  jpf ^jTroiessiona-lizi^gv  a  junction 
*fliat  its Standards  are  jajsed._  The  drattsman  will  taTtelT" 
"pride  in  Jus  Business  aniJTrrcourse  of  time  will  become 
an  expert  in  it.  He  learns  from  experience,  and  tradi- 
HonswTll  be  Tormed.  ^his.  of  course,  presupposes  that 
he  is  a  permanent  official.  In  addition.  t|e~will  oe  respon 
Slble  to  his  chief,  who  naturally  resents  "drafting  HP.  forts 
that  expose  him  to  parliamentary  non-partisan  criticism. 
In  Germany,  the  best  juristic  talent  that  goes  into  the 
government  service  is  utilized  for  the  preparation  of  legis- 
lative products,  and  these  are  regularly  accompanied  by 
exhaustive  statements  of  reasons,  which  enjoy  consider- 
able authority.  Drafts  of  important  measures  are  almost 
invariably  published  long  before  they  go  to  the  legisla- 
ture, in  order  to  receive  the  widest  criticism,  and,  as  the 
result  of  criticism,  are  often  revised  and  sometimes  en- 
tirely withdrawn.  The  individual  author  often  remains 
unknown  and  the  credit  of  the  government  stands  be- 
hind the  work.  The  second  reason  is  that  when  the 
government  introduces  a  bill,  the  parliamentary  debate,  is 
"somewhat  in  the  nature  of  an  adversary  procedure,  or  at 
Igast  there  is,  as  it  were,  a  petitioner  and  a  judge.  The 
minister  or  his  representative  (in  Germany  and  France, 
the  experts  appear  in  parliament  as  commissioners,  while 
in  England  only  parliamentary  secretaries  may  speak — 
much  to  the  disadvantage  of  the  English  debate)  has  to 
defend  the  measure  against  criticism,  and  legal  imperfec- 
tions or  inequities  would  be  legitimate  grounds  of  attack. 


72  RELATION   OF   EXECUTIVE 


\^     q 


The  liability  to  critfci.sm  ^SU^R  proper  rate  in  adyance. 
together  with  the  executive  initiative  gQ£s_a^  practical 
limitation  of  the  number  of  bills  introduced,  an  increased 
relative  importance  of  each  measure  and  proportionately 
greater  attentiorL_Jie§tQwej[_on  it.  Where  this  form  of 
legislative  preparation  and  procedure  has  been  observed, 
it  is  not  necessary  to  seek  further  reasons  for  a  good 
quality  of  the  product."11 

To  this  it  may  be  added  that  hardly  any  statute  is  so 
completely  ray  nova  that  it  does  not  to  some  extent 
modify  the  existing  law  and  therefore  require  to  be 
carefully  co-ordinated  with  the  previous  enactments. 
Almost  every  new  law  should  be  neatly  dovetailed  into 
an  existing  structure  of  legislation;  and  many  a  legis- 
lative blunder  is  due  to  a  neglect  of  this  simple  fact. 

Of  course  it  may  be  replied  to  these  arguments  and 
considerations  that  jt_js__not  necessary  to  give  to  the 
pf  government  a 


lative  initiative,  or  even  ja  share  in  it,  in  order  to  se- 
•  cure  scientific  precision  and  clarity^  in  the  preparation 
of  bills,  tor  any  le^TaHvebody  or  chamber  may,  if 
^it  chooses,  establish  a  bill-drafting  bureau  and  fill  it 
with  the  most  expert  talent  available.  But  it  is  less 
easy  to  dispose  of  the  fact  pointed  out  by  Mr.  Wilson, 
that  if  those  who  frame  the  laws  are  then  charged  with 
the  duty  of  seeing  to  their  application  in  actual  prac- 
tice, they  will  be  more  careful  in  the  details  of  what 
they  enact. 

"Under  the  parliamentary  form  of  government,"  he 
says,  "the  people's  recognized  leaders  for  the  time  being, 
that  is,  the  leaders  of  the  political  party  which  for  the 
time  commands  a  majority  in  the  popular  house  of  parli- 
ament, are  both  heads  of  the  executive  and  guides  of  the 

•*    1:L  Ernst  Freund,  "Standards  of  American  Legislation/'  p.  288. 


POWER   TO   LEGISLATION  73 

legislature.  They  both  conduct  government  and  suggest 
legislation.  All  the  chief  measures  of  a  parliamentary 
session  originate  with  them,  and  they  are  under  the 
sobering  necessity  of  putting  into  successful  execution  the 
laws  they  propose."12 

On  the  other  hand,  it  cannot  be  gainsaid  that  the  in- 
evitable tendency  of  the  cabinet  or  parliamentary  sys- 
tem of  government  is  to  vest  a  monopoly  of  legislative 
initiative  in  the  executive.  It  may  not  be  so  intended. 
It  is  perhaps  never  so  specified  in  any  constitution  or 
law.  On  the  contrary,  wherever_thej>vstem  is  in  force 
the  right  of  private  initlativ^regia^^  thpnrH-irally  rm- 

impaired'.    But  actually  it  dwindles,  while  the  executive 

A          i    '""i  _  •' 

initiative  grows,  until  the  tormer  is  restricted  to  local 
matters,  andjfop  latter  rmri-rnlQ  all 


u7ej""oTTeal  importance.  _  ThusJ^eJegislatiye  debates 

'Become  mere  exhibitions  of  attack  and  defense,  the 

HFuncHbn  of  the  opposition  is  limited  to  criticism,  and 

me  administration's  bills  are  carried  by  a^majority 

^which  works  automatically.    If  this  system  appears  to 

work  weiTin  Great  "Britain,  and  less  obviously  so  in 

France,  it  is  by  no  means  certain  that  it  is  at  all  adapted 

to  politicaTl:on<Ii^ 

stitutions,  oFlo^Fe^aBT^s^oT^fE6ugrlF  and  action  char- 
acteristic of  our  people.  It  is,  as  Lord  Bryce  has  said, 
not  a  plant  of  hardy  growth  nor  certain  to  flourish  in 
an  alien  ground. 

'This  system  of  so-called  cabinet  government,"  he  ob- 
serves, "seems  to  Europeans  now,  who  observe  it  at  work 
over  a  large  part  of  the  world,  an  obvious,  and  simple 
system.  We  are  apt  to  forget  that  it  was  never  seen  any- 
where till  the  English  developed  it  by  slow  degrees,  and 

12  Woodrow  Wilson,  "Constitutional  Government  in  the  United 
States"  (1908),  p.  40. 


74  RELATION   OF   EXECUTIVE 

that  it  is  a  very  delicate  system,  depending  on  habits, 
traditions,  and  understandings  which  are  not  easily  set 
forth  in  words,  much  less  transplanted  to  a  new  soil. 
...  It  is  a  system  whose  successful  working  presupposes 
the  existence  of  two  great  parties  and  no  more,  parties 
each  strong  enough  to  restrain  the  violence  of  the  other, 
yet  one  of  them  steadily  preponderant  in  any  given  House 
of  Commons.  Where  a  third,  perhaps  a  fourth,  party 
appears,  the  conditions  are  changed.  The  scales  of  Parli- 
ament oscillate  as  the  weight  of  this  detached  group  is 
thrown  on  one  side  or  the  other;  dissolutions  become 
more  frequent,  and  even  dissolutions  may  fail  to  restore 
stability.  The  recent  history  of  the  French  Republic 
shows  the  difficulties  of  working  a  chamber  composed  of 
groups,  nor  is  the  same  source  of  difficulty  unknown  in 
England/'13 

Other  countries  than  England  and  France  have 
tried  the  parliamentary  system,  apparently  with  very 
dubious  success.  In  Spain,  for  example,  the  actual 
operation  of  the  system  is  thus  described  by  a  publicist 
of  that  country: 

"The  attention  of  the  chambers  being  demanded  for  so 
many  affairs  foreign  to  the  mission  of  the  legislative 
power,  they  have  not  time  to  devote  themselves  to  an 
examination  of  the  laws.  The  discussion  of  records,  dis- 
cussion of  the  message,  questions  and  interpellations  every 
day,  all  this  absorbs  a  month  and  a  half  or  two  months, 
which  is  the  average  length  of  time  during  which  the 
Cortes  remain  open  in  each  legislature.  In  the  last  sit- 
tings they  approve  in  mass  the  railroad  bills,  and  like- 
wise the  accounts  of  the  State  and  the  budgets,  almost 
without  examining  them,  and,  at  best,  with  only  a  pre- 
tense of  discussion.  When  the  administration  proposes 
to  inaugurate  reforms  in  legislation,  civil,  penal,  admin- 
istrative, commercial,  etc.,  they  ask  {he  Cortes  for  an 
authorization,  and  with  this  subterfuge  the  ministers 
legislate  at  their  own  caprice,  just  as  the  absolute  kings 
used  to  legislate  at  will.  Only  laws  of  a  notably  politi- 

13  Bryce,  "American  Commonwealth"  (1889),  pp.  272,  281. 


POWER   TO   LEGISLATION  75 

cal  character  have  the  privilege  of  occupying  the  atten- 
tion of  the  chambers."14 

In  the  next  place,  we  must  by  no  means  forget  that 
jhe  very  essence  of  the  parliamentary  system  i^thejg- 
sponsibility  of  the  ministers,  who 


"confronted  with  a  hostile  majority  against  an  admin- 
istration  measure  of  first-rate  rank.  Makel:He~execu- 
tive  irremovable,  and  this  responsibility  becomes  at- 
tenuated to  the  degree  where  it  is  no  more  than  an 
uneasy  apprehension  as  to  the  state  of  public  opinion, 
that  opinion  being  diffuse  and  unorganized  and  not 
capable  of  becoming  articulate  for  perhaps  two  or 
three  years.  We  may  repeat  the  jioubts  expressed  on 
a  previous  page,  as  to  whether  a  control  of  legislation 
similar  to  that  held  by  the  ministry  in  England  could 
be  prudently  or  even  practically  intrusted  to  any  simi- 
laFgroup  in  this  country  without  the  same  or  aiTequal 
RmdTand  measure  of  responsibility,  or  whether  the 
cabinet  system  would  result  in  wise,  just,  and  benefi- 
cent government,  supposing  the  executive  officers 
jplaced  in  control  of  the  ouitp11*  nf  legislation  t°  hnTH 
office  for  a  fixed  term  of  years,  irrespective  of  hostile 
majorities,  andjtojbejpmnvah1f>  in  no  other  way  tjian 
by  impeachment__ 

The  confusion  of  the  executive  with  the  legislative 
power,  or  the  possession  of  them  both  by  the  same  in- 
dividual or  group,  always  leads,  as  Montesquieu  fore- 
saw it  would,  to  dictatorship.  The  rule  of  the  dicta- 
tor may  be  wise  or  unwise,  benevolent  or  tyrannical, 

14Ojea  y  Somoza  ("El  Parlamentarismo")  as  quoted  by  Mi- 
nana,  "La  Division  de  los  Poderes  del  Estado"  (Madrid,  1917), 
p.  219. 


;6  RELATION   OF   EXECUTIVE 

promotive  of  the  public  welfare  or  ruinous  to  his 
country ;  but  the  event  depends  upon  his  character  and 
his  will,  not  upon  the  constitution  of  the  country.  Even 
in  England, 

"one  may  say  that  the  legislative  and  executive  functions 
are  interwoven  as  closely  under  this  system  as  under  ab- 
solute monarchies,  such  as  imperial  Rome  or  modern 
Russia;  and  the  fact  that  taxation,  while  effected  by 
means  of  legislation,  is  the  indispensable  engine  of  ad- 
ministration, shows  how  inseparable  are  these  two  ap- 
parently distinct  powers."15 

In  sober  truth,  as  remarked  by  a  Spanish  writer, 

"in  many  countries  parliamentarism  is  a  screen  behind 
which  lurks  the  absolutism  of  royalty-by-the-grace-of- 
God.  Where  it  is  a  reality,  where  the  parliament  reigns 
and  governs  in  fact,  it  signifies  nothing  else  than  the  dic- 
tatorship of  certain  personages,  who  alternately  grasp  the 
reins  of  power.  In  effect,  these  are  found  to  be  in  the 
hands  of  a  half  dozen  party  chiefs  with  their  counsellors 
and  acolytes/'16  Again :  "There  is  a  manifest  tendency 
to  favor  arbitrary  power,  because  what  results  is  the 
substitution,  in  place  of  the  ancient  absolutism  of  an  in- 
dividual, of  the  absolutism  of  a  group,  or  even  of  a  single 
individual  again,  the  chief  of  a  party.  For  if,  after  cen- 
tralizing the  administration  and  placing  it  in  the  hands  of 
the  executive  power,  the  legislature  converts  itself  into 
a  sort  of  workshop  for  that  power,  the  ministers  are  lords 
and  masters  of  the  situation,  without  other  hindrance  or 
inconvenience  than  that  of  suffering  the  pin-pricks  of  the 
press,  and  of  defending  themselves  with  a  few  sophisms 
against  the  attacks  of  the  opposition  in  the  chambers."17 

And  further,  as  specially  illustrating  the  situation  in 
Spain,  but  not  without  a  general  application,  we  may 
quote  the  observation  that 

15  Bryce,  "American  Commonwealth"  •  (1889),  p.  272. 

16  Minana,  "La  Division  de  los  Poderes  del  Estado,"  p.  208. 

17  Idem,  p.  221. 


POWER   TO    LEGISLATION  77 

"absolutism  pure  and  simple,  without  a  parliament,  has 
after  all  the  one  good  condition  that  the  sovereign  always 
retains  a  personal  sense  of  responsibility  for  his  own 
acts.  Much  worse  is  the  absolutism  which  can  buttress 
itself  upon  a  docile  parliament,  and  which  needs  no  other 
justification  than  that  of  appealing  to  the  assent  of  a  ma- 
jority. Houses  constituted  under  such  a  system  of  par- 
liamentarism would  have  been  the  ideal  senate  for  the 
Emperor  Tiberius."18 

Finally,  it  cannot  be  inappropriate  to  listen  to  a  coun- 
sel of  prudence  from  one  who,  having  filled  the  office 
of  President  of  the  United  States,  has  left  on  record 
his  impressions  of  its  duties  and  opportunities. 

"It  is  true  that  a  parliamentary  government  offers  an 
opportunity  for  greater  effectiveness,  in  that  the  same 
mind  or  minds  control  the  executive  and  the  legislative  ( 
action,  and  the  one  can  be  closely  suited  to  the  other; 
whereas  our  President  has  no  initiative  in  respect  to 
legislation  given  him  by  law  except  that  of  mere  recom- 
mendation, and  no  method  of  entering  into  the  argument 
and  discussion  of  the  proposed  legislation  while  pending 
in  Congress,  except  that  of  a  formal  message  or  address. 
To  one  charged  with  the  responsibilities  of  the  President, 
especially  where  he  has  party  pledges  to  perform,  this 
seems  a  defect;  but  whatever  I  thought  while  in  office* 
I  am  inclined  now  to  think  that  the  defect  is  more  theo-j 
retical  than  actual."19 

It  is  possibly  worthy  of  snffiresrionT  however,  that 
we  might  profit  by  the  example  of  European  countries, 
"and  even  of  some  of4our  Latin- American  neighbors,  to 
the  extent  of  having  administration  measures,  prop- 
Jriy_so  calleq,  dratted,  introduced,  and  mafaageg"  on 
*thejBoqr Jby  members  of  the  administration,  and  those,  -O 
relating  to  the^rga^izatipn,  jurisdiction,  and  duties  of 

18  Sanchez  de  Toca  ("La  Crisis  de  Nuestro  Parlamentarismo") 
as  quoted  by  Mifiana,  op.  cit.,  p.  234. 

19  William  H.  Taft,  "Our  Chief  Magistrate,"  p.  11. 


78  RELATION   OF   EXECUTIVE 

the  judiciary  by  the  justices  of  the  Supreme  Court. 
But  the  term  "administration  measures/'  in  this  sense, 
would  not  include  all  bills  favored  by  the  executive  or 
originating  in  his  recommendations,  but  only  those 
relating  to  the  administration  of  government,  that  is, 
to  the  organization,  powers,  duties,  and  relations  of 
the  different  departments,  bureaus,  and  commissions. 
In  this  way,  as  also  in  regaMJaJ)ills__relating  to  the 
courts,  the  highest  expert  taknt..WDiiklJ)e  employed  in 
preparing  the  measures  for  the  consideration  of  Con- 
gress, and  those  best  qualified  by  experience  would  be 
engaged  in  explaining  and  defending  them.  Under 
such  a  plan  as  this,  a  bill  to  create  a  ^Department  of 
Munitions,  or  one  to  define  the  powers  of  the  Interstate 
Commerce  Commission,  or  one  to  regulate  proceedings 
in  the  General  Land  Office,  would  be  drafted  and 
sponsored  by  those  best  qualified  to  undertake  the  task, 
while  such  an  act  as  that  which  created  the  Circuit 
Courts  of  Appeals  would  have  been  prepared  under 
the  direct  supervision  of  the  Supreme  Court,  to  the 
obvious  advantage,  in  every  instance,  of  those  most  in- 
terested in  promoting  the  scientific  accuracy  and  pre- 
cision of  such  pieces  of  legislation,  and  eventually  of 
the  country  at  large. 


IV 

THE  CABINET  IN  CONGRESS 

The  proposal  that  the  members  of  the  President's 
cabinet  should  be  given  the  right  of  direct  access  to 
the  floor  of  the  two  houses  of  Congress  is  not  regarded 
by  those  who  favor  it  as  at  all  inimical  to  the  philo- 
sophical principle  in  government  of  the  separation  of 
the  executive  and  legislative  powers.  On  the  contrary, 
it  is  urged  as  a  step  to  be  taken  in  the  direction  of 
bringing  about  a  closer  harmony  and  better  co-ordina- 
tion in  the  work  of  the  two  departments.  Neverthe- 
less, if  the  relations  between  the  President  and  the 
Congress  are  in  a  state  of  unstable  equilibrium,  and  if 
the  balance  has  of  late  years  been  inclining  in  favor 
of  the  power  of  the  President, — and  that,  with  an 
accelerating  motion  almost  comparable  to  that  of  a 
body  falling  in  air, — and  if  it  has  already  become  an 
established  custom  for  the  President  to  use  the  mem- 
bers of  the  cabinet  as  his  most  powerful  advocates  and 
intermediaries  in  procuring  from  Congress  what  he  de- 
sires or  blocking  what  he  opposes,  as  we  have  tried  to 
show  in  the  foregoing  pages,  then  the  proposal  in  ques- 
tion must  be  studied  as  a  factor  in  the  constant  strug- 
gle of  the  executive  branch  of  government  for  as- 
cendancy and  control.  In  its  narrowest  form  the  pro- 
ject intends  merely  that  the  cabinet  ministers  should 
have  a  legal  right  to  go  upon  the  floor  of  the  Senate 


80  RELATION   OF   EXECUTIVE 

or  House  and  participate  at  will  in  the  debates.  In 
its  widest  form,  there  is  added  the  proposition  that 
they  should  have  the  right  to  introduce  bills  of  their 
own  drafting,  that  they  should  be  required  to  attend 
the  sittings  of  Congress  either  on  call  for  their  pres- 
ence or  on  stated  days,  and  that  they  should  be  under 
the  obligation  to  furnish  information  and  to  answer 
questions  concerning  matters  pending  in,  or  which  may 
affect,  their  several  departments. 

Though  this  subject  is  of  special  importance  at  the 
present  moment,  it  is  not  a  new  thing  in  our  history. 
As  far  back  as  1881,  a  select  committee  of  the  Senate 
recommended  the  passage  of  an  act  giving  the  heads 
of  departments  access  to  the  floor  of  the  houses,  with 
the  right  to  introduce  bills  and  to  support  them  in  de- 
bate. The  report  of  the  committee  was  signed  by  Sen- 
ators Pendleton,  Allison,  Voorhees,  Elaine,  Butler,  In- 
galls,  Platt,  and  Farley.  More  than  one  President  has 
approved  the  suggestion,  as,  for  example,  President 
Taft,  who  even  urged  a  similar  measure  upon  the  at- 
tention of  Congress  in  his  annual  message  of  1912. 
And  it  is  significant  that  President  Wilson  has  revived 
the  custom,  in  abeyance  since  Washington's  time,  of 
delivering  his  communications  to  Congress  in  person, 
at  the  Capitol,  with  his  own  voice,  though  no  one  has 
had  the  temerity  of  attempting  to  subject  him,  on  such 
occasions,  to  interrogation.  The  problem  and  its  pro- 
posed solution  have  recently  been  stated  by  President 
Nicholas  Murray  Butler  of  Columbia  University  in  the 
following  terms : 

"The  business  of  national  government  has  become  so 
huge  and  so  complex  that  the  sharp  separation  of  the  ex- 


POWER   TO    LEGISLATION  81 

ecutive  and  the  legislative  powers  to  which  we  have  been 
accustomed  for  one  hundred  and  forty  years  is  now  dis- 
tinctly disadvantageous.  It  brings  in  its  train  lack  of 
coherence  and  of  continuity  in  public  policy;  it  conceals 
from  the  people  much  that  they  should  know ;  and  it  pre- 
vents effective  and  quick  co-operation  between  the  Con- 
gress and  the  executive  departments,  both  in  times  of 
emergency  and  in  the  conduct  of  the  ordinary  business  of 
government.  There  is  a  way  to  overcome  these  embar- 
rassments and  difficulties  without  in  any  way  altering  the 
form  of  our  government  or  breaking  down  the  wise  safe- 
guards which  the  Constitution  contains.  That  is  to  pro- 
vide by  law,  as  may  be  done  very  simply,  that  the  mem- 
bers of  the  cabinet  shall  be  entitled  to  occupy  seats  on  the 
floor  of  the  Senate  and  House  of  Representatives,  with 
the  right  to  participate  in  debate  on  matters  relating  to 
the  business  of  their  several  departments,  under  such 
rules  as  the  Senate  and  House  respectively  may  pre- 
scribe. Such  an  act  should  further  provide  that  the 
members  of  the  cabinet  must  attend  sessions  of  the  Sen- 
ate and  House  of  Representatives  at  designated  times,  in 
order  to  give  information  asked  by  resolution  or  to  reply 
to  questions  which  may  be  propounded  to  them  under 
the  rules  of  the  Senate  and  the  House  of  Representa- 
tives."1 

That  this  could  be  effected  without  a  constitutional 
amendment  is  of  course  apparent.  It  rests  with  Con- 
gress. That  body,  by  a  line  of  precedents  reaching 
back  almost  to  the  organization  of  the  government, 
has  established  its  power  to  require  members  of  the 
cabinet  to  report  directly  to  it  on  matters  connected 
with  their  departmental  affairs,  and  also  its  power  to 
admit  any  person,  in  its  discretion,  to  the  floor  of 
either  house  for  the  purpose  of  addressing  it.  It 
could  scarcely  be  denied,  then,  that  Congress  might  re- 

1  "A  Program  of  Constructive  Progress,"  an  Address  before 
the  Commercial  Club  of  St.  Louis,  February  16,  1918,  reprinted  in 
pamphlet  form. 


82  RELATION   OF   EXECUTIVE 

quire  the  cabinet  ministers  to  render  their  reports  and 
to  respond  to  questions  on  the  floor  of  the  house,  in 
person,  and  orally,  or  that  it  could  afford  them  a  stand- 
ing right  of  access  to  either  or  both  houses  and  a  con- 
tinuous privilege  of  addressing  them  from  the  floor  on 
subjects  within  their  several  provinces.  Besides,  as 
President  Taft  pointed  out,  there  is  nothing  in  the 
Constitution  which  explicitly  authorizes  Congress  to 
seat  delegates  from  the  territories  in  the  House,  with 
the  privilege  of  being  heard  in  debate.  Yet  this  has 
been  done,  and  there  is  no  constitutional  reason  why 
the  same  course  might  not  be  taken  with  respect  to 
members  of  the  cabinet. 

Though  untried  in  the  United  States,  this  form  of 
participation  by  the  executive  officers  in  the  work  of 
the  legislature  is  familiar  in  several  countries  of  Eu- 
rope and  of  Latin- America ;  and  it  is  to  their  exper- 
ience, therefore,  that  we  must  turn  for  information  as 
to  the  advantages  or  disadvantages  of  the  system.  But 
there  is  an  important  distinction  to  be  kept  in  mind. 
It  has  not  been  proposed  that  the  members  of  the 
American  cabinet  should  be  elected  members  of  either 
house  of  Congress,  or  that  the  President  should  select 
the  heads  of  departments  from  among  the  Senators  or 
Representatives.  Indeed,  the  Constitution  expressly 
forbids  this.  But  in  several  foreign  countries  the 
ministers  of  state  necessarily  are  (or  they  may  be) 
members  of  the  legislative  body,  of  course  with  the 
right  to  vote.  This  necessarily  imposes  a  multiple  re- 
sponsibility upon  an  official  acting  in  this  dual  capacity, 
first  to  his  associates  in  the  ministry,  who  must  not,  by 
reason  of  anything  he  does,  be  exposed  to  the  hazard 


POWER   TO   LEGISLATION  83 

of  losing  the  confidence  of  the  house,  then  to  his  con- 
stituents at  the  polls,  and  finally  to  the  legislative  as- 
sembly itself,  since  parliamentary  practice  (at  least  in 
France,  and  probably  elsewhere)  requires  the  resigna- 
tion of  a  minister  upon  the  defeat  of  a  measure  which  ' 
he  has  sponsored.  But  an  American  cabinet  minister, 
given  a  seat  in  Congress  with  the  right  to  introduce 
bills  and  argue  for  their  enactment,  would  be  under  no 
responsibility  whatever  except  that  which  always  rests 
upon  him,  namely,  responsibility  to  his  chief,  the  Presi- 
dent, and  if  the  defeat  of  even  his  most  earnestly  de- 
sired measure,  by  even  the  most  overwhelming  ma- 
jority, should  bring  about  his  resignation,  it  would  be 
prompted  by  chagrin  and  not  by  the  rules  of  the  parli- 
amentary game.  If,  therefore,  the  entrance  of  min- 
isters into  the  processes  of  legislation  produces  bene- 
ficial results  in  England  or  in  France,  that  is  no  argu- 
ment whatever  for  the  introduction  of  the  system  in 
the  United  States. 

In  England,  it  is  a  part  of  the  unwritten  constitution 
that  every  member  of  the  cabinet  must  have  a  seat 
either  in  the  House  of  Commons  or  the  House  of 
Lords,  or  in  other  words  that  the  cabinet  must  be 
made  up  from  among  the  members  of  the  majority 
party  in  Parliament. 

'The  reason  commonly  given  for  such  a  limitation  in 
the  selection  of  ministers  is  that  otherwise  they  could  not 
be  made  responsible  to  Parliament,  where  they  must  be 
present  in  order  to  answer  questions  and- give  informa- 
tion relating  to  their  departments.  From  the  standpoint 
of  Parliament  this  is  perfectly  true,  but  the  converse  is 
also  true.  The  head  of  a  department  sits  in  the  House 


84  RELATION   OF   EXECUTIVE 

of  Commons  quite  as  much  in  order  to  control  the  House 
as  in  order  that  the  House  may  control  him/'2 

In  France,  by  article  6  of  the  Constitution  of  1875, 

"the  ministers  shall  have  entrance  to  both  chambers,  and 
shall  be  heard  when  they  request  it.  They  may  be  as- 
sisted, for  the  discussion  of  a  specific  bill,  by  commis- 
sioners named  by  decree  of  the  President  of  the  Repub- 
lic." 

In  Switzerland,  by  article  101  of  the  Constitution  of 
1874, 

"the  members  of  the  Federal  Council  shall  have  the  right 
to  speak,  but  not  to  vote,  in  both  houses  of  the  Federal 
Assembly,  and  also  the  right  to  make  motions  on  the 
subject  under  consideration." 

In  Holland, 

"the  heads  of  the  ministerial  departments  shall  have  seats 
in  both  houses.  They  shall  have  only  a  deliberative  voice, 
unless  they  have  been  elected  members  of  the  house  in 
which  they  sit.  They  shall  furnish  the  houses,  orally  or 
in  writing,  such  information  as  is  requested,  and  the  fur- 
nishing of  which  is  not  considered  detrimental  to  the  in- 
terests of  the  state.  They  may  be  summoned  by  either  of 
the  two  houses  to  attend  its  meetings  for  this  purpose." 
(Constitution  of  1887,  art.  94.) 

In  Norway,  by  the  Constitution  of  1814,  article  74, 

"the  ministers  of  state  and  the  councillors  of  state  shall 
have  the  right  to  attend  in  the  Storthing  and  in  both 
branches  thereof,  and,  upon  an  equality  with  its  members, 
but  without  vote,  to  take  part  in  the  proceedings  in  so 
far  as  they  are  conducted  publicly,  but  in  secret  sessions 
only  in  so  far  as  the  body  in  question  may  grant  per- 
mission." 

The  Constitution  of  the  "Confederate  States  of  Amer- 
ica" also  provided: 

2  A.  Lawrence  Lowell,  "The  Government  of  England,"  Vol. 
I,  p.  61. 


POWER   TO   LEGISLATION  85 

"Congress  may  by  law  grant  to  the  principal  officer  in 
each  of  the  executive  departments  a  seat  upon  the  floor 
of  either  house,  with  the  privilege  of  discussing  any 
measure  appertaining  to  his  department." 

In  Belgium,  Italy,  and  Spain,  the  ministers  or  secre- 
taries of  state  are  not  necessarily  members  of  either 
house  of  the  legislature,  but  they  may  be  so.  If  mem- 
bers, they  have  of  course  the  right  to  vote,  but  other- 
wise not.  In  either  case  they  have  the  entrance  to 
both  houses,  and  shall  be  heard  upon  their  request. 

The  countries  of  Central  and  South  America  have 
generally  followed  the  "presidential  system"  in  so  far 
as  that  ministers  of  state  cannot  at  the  same  time  be 
members  of  the  legislative  body.  This  is  true  in  Bra- 
zil, Bolivia,  Panama,  Honduras,  Mexico,  the  Argen- 
tine, Guatemala,  Salvador,  Nicaragua,  Costa  Rica,  the 
Dominican  Republic,  Cuba,  Peru,  Ecuador,  Colombia, 
and  Paraguay.  However,  a  notable  exception  is  found 
in  the  case  of  Chile.  But  at  the  same  time  these  coun- 
tries have  so  far  adopted  the  parliamentary  system  that 
the  ministers  have  access  to  the  floor  of  the  legisla- 
ture to  explain  and  defend  measures,  or  may  be  sum- 
moned there  for  that  purpose.  This  is  the  constitu- 
tional rule,  for  example,  in  Bolivia,  Panama,  Chile, 
Paraguay,  Honduras,  Venezuela,  Salvador,  Nicaragua, 
Costa  Rica,  the  Dominican  Republic,  Haiti,  Peru,  and 
Ecuador.  For  instance,  the  provisions  of  the  Argen- 
tine constitution  (articles  63,  90,  and  92)  are  that 

"each  chamber  shall  have  power  to  summon  to  its  pres- 
ence the  members  of  the  cabinet,  in  order  that  they  may 
give  orally  the  information  which  may  be  deemed  neces- 
sary. As  soon  as  Congress  meets,  each  minister  shall 
submit  to  it  a  report  on  the  state  of  the  nation  so  far  as 


86  RELATION   OF   EXECUTIVE 

relates  to  the  business  of  his  own  department.  The  min- 
isters may  attend  the  sessions  of  Congress  and  take  part 
in  the  debates,  but  they  shall  have  no  vote." 

In  Colombia,  the  function  of  the  ministers  is  still 
more  sharply  defined,  and  they  are  expressly  made  the 
connecting  link  between  the  executive  and  legislative 
departments.  The  I34th  article  of  the  constitution  of 
that  state  p'rovides : 

"The  ministers  are  the  organs  of  communication  be- 
tween the  executive  and  Congress.  They  may  introduce 
bills  in  both  houses,  take  part  in  the  debates,  and  advise 
the  President  to  approve  or  object  to  the  acts  of  the 
legislature." 

In  Bolivia,  the  constitution  not  only  permits  but  re- 
quires the  participation  of  ministers  in  debate  when 
the  bill  under  discussion  has  been  proposed  by  the  ex- 
ecutive. The  65th  article  is  as  follows: 

"Laws  may  originate  in  the  Senate  or  the  Chamber  of 
Deputies  by  bills  introduced  by  their  members,  or  by  a 
message  directed  to  them  by  the  President  of  the  Repub- 
lic, on  condition  (in  the  latter  case)  that  the  bill  shall  be 
supported  in  the  debates  by  at  least  one  of  the  cabinet 
ministers,  but  he  shall  not  have  a  vote." 

On  the  other  hand,  the  new  constitution  of  Mexico 
(1917)  adheres  more  closely  to  the  practice  prevailing 
in  the  United  States.  It  is  provided  (article  93)  that 

"the  secretaries  of  executive  departments  shall  on  the 
opening  of  each  regular  session  report  to  the  Congress  as 
to  the  state  of  their  respective  departments.  Either  house 
may  summon  a  secretary  of  an  executive  department  to 
inform  it,  whenever  a  bill  or  other  matter  pertaining  to 
his  department  is  under  discussion." 

Sole  among  these  countries  Brazil  seems  anxious  to 
exclude  all  vestiges  of  the  parliamentary  or  cabinet  sys- 
tem; for  its  constitution  (article  51)  declares  that 


POWER   TO    LEGISLATION  87 

"the  cabinet  ministers  shall  not  appear  at  the  meetings  of 
the  Congress,  and  shall  communicate  with  it  only  in  writ- 
ing, or  personally  in  conferences  with  the  committees  of 
the  chambers." 

A  very  important  part  of  the  argument  in  favor  of 
admitting  the  heads  of  departments  to  the  floor  of 
Congress  is  that  it  would  enable  them,  promptly  and 
viva  voce,  to  furnish  authoritative  information  on  the 
needs  and  the  workings  of  their  departments  and  to 
explain  and  defend  their  own  bills  or  those  known  to 
be  administration  measures.  It  will  be  of  advantage, 
therefore,  to  see  how  the  practice  of  parliamentary  in- 
terrogation operates  in  those  countries  where  it  is  in 
vogue.  Turning  first  to  England,  we  find  a  very  com- 
plete account  of  the  matter  in  President  Lowell's  im- 
portant work  on  "The  Government  of  England."3 

"Isolated  examples  of  questions  addressed  to  minis- 
ters," he  says,  "can  be  found  far  back  in  the  eighteenth 
century,  but  the  habit  did  not  become  common  until  about 
sixty  years  ago.  At  that  period,  100  or  more  questions 
were  asked  in  the  course  of  a  session,  and  the  first  regu- 
lations were  made  regarding  the  time  and  method  of 
putting  them.  Thereafter  the  practice  grew  so  fast  that 
in  the  seventies  over  1000  were  asked  in  a  session,  and  by 
the  end  of  the  century  it  had  increased  to  about  5000.  In 
form,  questions  are  simply  requests  for  information. 
They  must  contain  no  argument,  no  statement  of  fact  not 
needed  to  make  their  purport  clear,  and  they  must  be  ad- 
dressed to  that  minister  in  the  House  in  whose  province 
the  subject-matter  of  the  inquiry  falls.  They  cover  al- 
most every  conceivable  field;  the  intentions  of  ministers 
in  the  conduct  of  the  business  of  the  House ;  acts  done  by 
officials  of  all  grades  in  every  department  of  the  public 
service ;  and  even  events  that  might  be  expected  to  give 
rise  to  action  by  the  government.  The  process  of  answer- 
ing questions  gives  to  the  Treasury  Bench  an  air  of  omni- 

8  Vol.  I,  pp.  331-333- 


88  RELATION   OF   EXECUTIVE 

science  not  wholly  deserved,  for  notice  of  the  question  to 
be  asked  is  sent  in  a  day  or  two  in  advance,  so  as  to  give 
time  for  the  permanent  subordinates  to  hunt  up  the  mat- 
ter and  supply  their  chief  with  the  facts  required.  Ques- 
tions are  asked  from  various  motives ;  sometimes  simply 
to  obtain  information ;  sometimes  to  show  to  constituents 
the  assiduity  of  their  member,  or  to  exhibit  his  opinions; 
sometimes  to  draw  public  attention  to  a  grievance ;  some- 
times to  embarrass  the  government  or  make  a  telling 
point ;  and  at  times  a  question  is  asked  by  a  supporter  of 
the  minister  in  order  to  give  him  a  chance  to  bring  out  a 
fact  effectively.  But  whatever  the  personal  motive  may  be, 
the  system  provides  a  method  of  dragging  before  the 
House  any  act  or  omission  by  the  departments  of  state, 
and  of  turning  a  searchlight  upon  every  corner  of  the 
public  service.  The  privilege  is  easily  abused,  but  it 
helps  very  much  to  keep  the  administration  of  the  coun- 
try up  to  the  mark,  and  it  is  a  great  safeguard  against 
negligent  or  arbitrary  conduct,  or  the  growth  of  that 
bureaucratic  arrogance  which  is  quite  unknown  in  Eng- 
land. The  minister  is  not,  of  course,  obliged  to  answer, 
but  unless  he  can  plead  an  obvious  reason  of  public  policy 
why  he  should  not  do  so,  as  is  often  the  case  in  foreign 
affairs,  a  refusal  would  look  like  an  attempt  to  conceal, 
and  would  have  a  bad  effect.  Now  while  questions  fur- 
nish a  most  effective  means  of  bringing  administrative 
errors  to  the  notice  of  the  House,  they  afford  no  oppor- 
tunity for  passing  judgment  upon  them,  and  thereby  they 
avoid  the  dangers  of  the  French  custom  of  interpella- 
tions. A  question  in  England  is  not  even  followed  by  a 
debate.  Often,  indeed,  the  member  says  that  his  inquiry 
has  not  been  fully  answered,  or  interjects  a  remark,  ob- 
jection, or  further  question ;  but  this  is  never  allowed  to 
grow  into  a  discussion,  and  when  the  habit  of  asking  sup- 
plementary questions  becomes  too  common,  the  ministers 
refuse  to  answer  them  altogether,  to  the  temporary  ex- 
asperation of  the  opposition,  or  the  Speaker  himself 
checks  them,  enforcing  the  rule  against  introducing  mat- 
ter of  argument.  If  no  debate  is  in  order,  neither  is  a 
vote;  and  hence  questions  furnish  a  means  of  drawing 
public  attention  to  an  act,  but  not  for  collective  censure 
of  it  by  the  House." 


POWER   TO    LEGISLATION  89 

In  France,  the  interrogation  of  ministers  plays  a 
much  more  important  part  in  parliamentary  tactics  and 
even  in  the  administration  of  government,  since  an  in- 
terpellation may  be  made  the  foundation  of  a  motion 
involving  the  question  of  the  minister's  continued  re- 
tention of  the  confidence  of  the  house  or  his  loss  of 
it,  with  the  ultimate  necessity  of  the  tender  of  his 
resignation,  or  even  that  of  the  entire  ministry,  if  de- 
feated. The  present  President  of  the  French  Republic 
has  thus  explained  the  matter: 

"The  constitutional  law  of  July  16,  1875,  enacts  in  ar- 
ticle 6:  The  ministers  have  the  right  of  entry  in  the 
two  chambers  and  must  be  heard  when  they  demand  a 
hearing/  Thus  a  minister  who  is  a  Senator  may  speak  in 
the  Chamber  of  Deputies ;  a  minister  who  is  a  Deputy 
may  ascend  the  tribune  in  the  Senate ;  and  a  minister  who 
is  neither  a  Senator  nor  Deputy  can  be  heard  in  either 
chamber.  Ministers  therefore -intervene  in  the  work  of 
legislation.  They  support  the  projects  of  laws  which 
they  have  introduced;  they  give  their  advice  as  to  pro- 
posals initiated  by  Parliament ;  they  oppose  resolutions 
and  amendments  of  which  they  do  not  approve.  As  it 
would  be  difficult  for  them  to  have  cognizance  of  all  the 
matters  in  debate,  they  may  be  assisted  by  administrative 
delegates  appointed  for  the  discussion  of  any  particular 
law  projected,  by  decree  of  the  President  of  the  Re- 
public. These  auxiliaries  are  known  as  commissaries  of 
the  government.  Ministers,  being  responsible  to  the 
chambers,  may  be  questioned  or  interpellated  upon  the 
acts  of  their  administration.  When  a  question  is  put  to 
a  minister,  he  is  free  to  reject  it  and  to  give  no  reply;  but 
he  has  not  the  right  to  evade  an  interpellation  put  in 
writing  by  the  President  of  the  Assembly.  The  most  that 
he  can  do  is  to  demand  an  adjournment  of  the  discussion. 
An  interpellation  in  respect  of  internal  policies  is  never 
adjourned  for  more  than  a  month.  The  Deputy  who 
brings  forward  the  interpellation  develops  it,  and  the 
other  members  of  the  Assembly  take  part  in  the  debate  if 


90  RELATION    OF   EXECUTIVE 

they  think  fit,  and  the  matter  ends  with  the  proposal  of  a 
parliamentary  resolution,  which  is  known  as  an  'order  of 
the  day/  'The  Chamber,  making  note  of  the  declaration 
of  the  government/  or  'counting  upon  the  government 
to  .  .  .'  or  'confiding  in  the  government.  .  .  .'  If  an 
order  of  the  day  in  conformity  with  the  desire  of  the  in- 
terpellated minister  is  not  adopted,  the  minister  is  de- 
feated; he  retires,  and  offers  his  resignation  to  the  Presi- 
dent of  Council.  If  the  interpellation  involves  the  gen- 
eral policy  of  the  cabinet,  and  the  order  of  the  day  is  un- 
favorable, the  entire  ministry  is  under  the  moral  obliga- 
tion of  resigning."4 

Could  this  system  be  adapted  to  the  work  of  legis- 
lation in  the  United  States?  Let  it  be  supposed  that 
the  members  of  the  cabinet  have  been  accorded  the 
right  to  go  upon  the  floor  of  Congress,  to  introduce 
bills,  and  to  speak  in  their  behalf.  Then  let  it  be  sup- 
posed that  a  cabinet  minister  presents  a  bill  relating  to 
the  military  establishment  (for  the  sake  of  example, 
a  bill  to  raise  an  army  by  voluntary  enlistment),  but  it 
develops  in  the  course  of  interpellation  and  debate  that 
both  of  the  houses,  by  a  strong  but  not  overwhelming 
majority,  are  opposed  to  his  ideas  and  would  favor  a 
conscription  act.  In  England  or  Canada  the  matter 
would  be  pressed  to  a  vote ;  in  France  an  "order  of  the 
day"  would  be  passed;  in  either  case  a  situation  would 
be  created  in  which  it  would  be  incumbent  on  that 
minister  to  resign,  and  perhaps  his  fall  would  involve 
that  of  the  entire  ministry.  But  not  only  that  would 
result.  The  next  step  would  be  the  appointment  of 
a  ministry  in  sympathy  with  the  views  of  the  parlia- 
mentary majority,  and  they  would  frame,  introduce, 
and  carry  a  different  bill  on  the  same  subject.  And 

4  Raymond  Poincare,  "How  France  is  Governed,"  pp.  200-202. 


POWER   TO    LEGISLATION  91 

thus  the  will  of  the  majority  would  be  accomplished. 
Not  so,  however,  in  the  United  States.  The  defeated 
minister  would  not  resign  unless  he  found  himself  in 
disagreement  with  the  President.  That  is  a  case  which 
has  rarely  occurred  in  our  history.  Otherwise  the  situ- 
ation would  result  in  a  deadlock,  the  majority  not  be- 
ing able  to  effect  its  will  unless  numerically  strong 
enough  to  overcome  the  President's  probable  veto;  or 
else  the  President  would  be  able  to  break  down  oppo- 
sition by  influence,  pressure,  promises,  and  other  de- 
vices of  the  lobby,  and  so  thwart  the  real  desire  of  the 
majority.  We  return,  then,  to  the  conclusion  already 
indicated,  that  it  is  not  feasible  to  have  a  parliamentary, 
system  of  government,  even  to  the  extent  proposed, 
without  ministerial  responsibility. 

It  is  argued,  and  with  some  justice,  that  the  pro- 
posed change  in  the  relation  of  the  cabinet  to  the  Con- 
gress would  obviate  the  necessity  of  whispered  inter- 
views in  the  corridors  and  cloak  rooms,  bring  into  the 
open  many  proceedings  which  are  now  too  often  of  a 
subterranean  character,  and  place  the  heads  of  depart- 
ments in  an  attitude  towards  legislation  at  once  cor- 
rect and  befitting  their  high  station.  Nicholas  Mur- 
ray Butler,  in  the  pamphlet  already  cited,  says : 

"A  cabinet  officer  is  in  a  much  more  dignified  position 
if  he  is  permitted  to  answer  questions  as  to  his  official 
conduct  and  business  on  the  floor  of  a  legislative  body, 
and  to  make  his  reply  part  of  the  public  record,  than  if 
he  is  interrogated  in  a  committee  room  as  an  incident  in 
some  general  inquiry/' 

This  suggests,  what  is  indeed  the  fact,  that  the  prob- 
lem is  wide  enough  to  involve  a  consideration  of  the 
powers  and  procedure  of  the  standing  committees.  In 


92  RELATION    OF   EXECUTIVE 

substance,  the  proposal  is  to  take  the  cabinet  minister 
out  of  the  committee  room  and  place  him  on  the  floor 
of  the  house.  A  French  writer  on  comparative  con- 
stitutional law,  after  speaking  of  the  standing  com- 
mittees of  the  Senate  and  House  as  "organs  of  rela- 
tion" between  the  legislative  and  executive  powers, 
has  said : 

"Ministers  who  wish  to  have  a  bill  introduced  confer 
with  the  chairman  of  the  appropriate  committee.  Some 
of  these  committees  exercise  by  this  means  an  incessant 
supervision  over  the  administration.  They  cite  the  min- 
isters before  them  and  interrogate  them  concerning  their 
methods  and  objects.  This  supervision  is  contrary  to  the 
principle  of  the  separation  of  powers;  it  is  secret,  and 
consequently  favors  intrigues  and  compromises,  and  may 
hinder  the  progress  of  the  government.  The  result  is 
disorder  and  impotence."5 

On  this,  however,  it  is  necessary  to  remark  that  such 
examinations  are  now  very  seldom  private  or  confi- 
dential, except  where  important  military  secrets  are  in- 
volved or  delicate  affairs  of  state.  Almost  always  a 
member  of  the  cabinet  presents  himself  before  a  com- 
mittee, whether  on  summons  or  at  his  own  request,  for 
the  purpose  of  a  public  hearing,  at  which  he  has  full 
opportunity  not  only  to  supply  information  but  also  to 
press  his  own  views  and  arguments,  and  the  proceed- 
ings are  published  at  large  and  in  detail  in  the  press. 
The  argument  for  publicity  and  for  placing  the  heads 
of  departments  in  a  correct  attitude  towards  legislation 
would  therefore  appear  to  have  little  weight  in  so  far 
as  it  relates  to  discussion  of  the  policies  of  law-making 

5  Esmein,  "Elements  de  Droit  constitutional  et  comparee," 
(Paris,  1914),  as  quoted  by  Mifiana,  "La  Division  de  los  Poderes 
del  Estado/'  p.  216. 


POWER   TO    LEGISLATION  93 

or  the  presentation  of  information  for  the  guidance  of 
the  legislators ;  but  it  must  be  admitted  that  it  does  not 
lack  force  in  its  relation  to  the  more  or  less  stealthy 
and  certainly  undignified  exertion  of  pressure  by  ex- 
ecutive officers  to  secure  the  success  or  defeat,  the 
moulding  or  the  modification,  of  pending  bills,  always 
assuming  that  such  practices  cannot  otherwise  be 
brought  to  an  end. 

Those  who  favor  the  admission  of  the  members  of 
the  cabinet  to  the  floor  of  the  houses,  with  the  right  to 
participate  in  debate,  believe  that,  under  such  condi- 
tions, the  executive  departments  would  be  presided 
over  by  men  of  much  higher  intelligence  and  greater 
capacity.  Thus,  ex-Governor  McCall  (in  a  published 
interview  already  quoted)  says: 

"One  effect  of  such  a  change  would  be  an  improve- 
ment in  the  average  capacity  of  cabinet  members.  We 
have  had  members  appointed  to  the  cabinet  who  have 
had  little  or  no  experience  in  public  affairs  or  in  main- 
taining their  views  before  a  parliamentary  body.  I  think 
men  would  be  required  in  the  cabinet  of  a  very  different 
calibre  from  some  of  those  who  have  heretofore  been  put 
at  the  head  of  a  department  of  the  government,  should 
some  change  along  this  line  be  made/' 

In  the  report  of  the  Senate  committee  on  this  sub- 
ject, to  which  reference  has  been  made,  it  was  said : 

"This  system  will  require  the  selection  of  the  strongest 
men  to  be  heads  of  departments,  and  will  require  them  to 
be  well  equipped  with  the  knowledge  of  their  offices.  It 
will  also  require  the  strongest  men  to  be  the  leaders  of 
Congress  and  participate  in  debate.  It  will  bring  these 
strong  men  in  contact,  perhaps  in  conflict,  to  advance  the 
public  weal,  and  thus  stimulate  their  abilities  and  their 
efforts,  and  will  thus  assuredly  result  to  the  good  of  the 
country." 


94  RELATION   OF   EXECUTIVE 

President  Taft,  who  strongly  favored  the  proposed 
change,  has  recorded  his  belief  that 

"this  would  impose  on  the  President  greater  difficulty  in 
selecting  his  cabinet,  and  would  lead  him  to  prefer  men 
of  legislative  experience  who  have  shown  their  power 
to  take  care  of  themselves  in  legislative  debate.  It  would 
stimulate  the  head  of  each  department  by  the  fear  of  pub- 
lic and  direct  inquiry  into  a  more  thorough  familiarity 
with  the  actual  operations  of  his  department  and  into  a 
closer  supervision  of  its  business. "6 

To  the  same  effect  also  is  the  opinion  of  Dr.  Butler, 
who  observes : 

"Were  such  a  custom  to  be  established,  an  almost  cer- 
tain result  would  be  the  selection  as  heads  of  the  great 
executive  departments  of  men  of  large  ability  and  per- 
sonal force,  men  able  to  explain  and  defend  their  policies 
and  measures  before  the  Congress  of  the  United  States 
in  the  face  of  the  whole  country."7 

But  all  this  is  predicated  upon  the  supposition  that  an 
incoming  President  has  a  perfectly  free  hand  in  se- 
lecting the  members  of  his  cabinet,  and  could  choose 
them  with  regard  solely  to  their  ability  and  experience. 
But  has  this  ideal  ever  been  realized  in  our  history  ?  In 
fact,  cabinet  appointments  are  often  dictated  by  con- 
siderations of  political  expedience.  There  are  power- 
ful and  dangerous  rivals  to  be  placated  or  disarmed. 
There  are  party  leaders,  campaign  managers,  heavy 
contributors  to  the  campaign  funds,  whose  preferences 
must  be  consulted,  whether  they  lie  in  the  direction  of 
personal  ambition  or  the  distribution  of  high  offices. 
Good  party  policy  also  requires  a  certain  geographical 
apportionment  of  the  cabinet  ministers.  And  is  it  al- 

6  William  H.  Taft,  "Our  Chief  Magistrate,"  p.  31. 

7  "A  Program  of  Constructive  Progress/'  ut  supra. 


POWER   TO    LEGISLATION  95 

ways  certain  that  a  President,  himself  ambitious  and 
conscious  of  a  gift  for  leadership,  would  be  willing  to 
invite  into  his  official  family,  and  to  place  on  the  floor 
of  Congress  as  his  spokesmen  and  representatives,  men 
of  very  conspicuous  and  perhaps  overshadowing  abil- 
ity? The  trouble  with  most  political  formulas  is  that 
they  leave  out  of  view  the  personal  element  in  the  equa- 
tion. But  it  was  precisely  this  point — political  power 
as  a  function  of  personality — that  the  founders  of  the 
Republic  had  in  mind  when  they  framed  the  Constitu- 
tion and  devised  the  form  of  government  under  which 
we  have  hitherto  prospered. 

Minor  arguments  are  not  wanting  for  the  suggested 
change  in  the  status  of  the  heads  of  departments. 
Thus,  it  is  said  that,  with  the  best  intentions  in  the 
world,  Congress  often  blunders  sadly  in  its  enactments 
for  the  lack  of  exact  information  upon  specific  details, 
and  that  this  would  not  happen  if  the  cabinet  minister 
possessing  precisely  the  needed  facts  and  figures  were 
present  in  debate,  and  if  it  were  his  duty  either  to  vol- 
unteer or  to  supply  on  request  what  the  legislators 
should  learn.  President  Taft  says  that  the  proposed 
new  system 

"would  give  the  President  what  he  ought  to  have,  some 
direct  initiative  in  legislation  and  an  opportunity,  through 
the  presence  of  his  competent  representatives  in  Congress, 
to  keep  each  house  advised  of  the  facts  in  the  actual 
operation  of  the  government.  The  time  lost  in  Congress 
over  useless  discussion  of  issues  that  might  be  disposed 
of  by  a  single  statement  from  the  head  of  a  department, 
no  one  can  appreciate  unless  he  has  filled  such  a  place."8 

And  in  the  same  strain  it  is  remarked  by  Dr.  Butler  : 

8  William  H.  Taft,  "Our  Chief  Magistrate,"  p.  31. 


96  RELATION   OF   EXECUTIVE 

"Had  such  a  provision  been  in  force  during  the  past 
generation,  the  nation  would  have  been  spared  many  an 
unhappy  and  misleading  controversy.  What  has  some- 
times been  made  public  only  after  the  labor  and  cost  of 
an  elaborate  investigation  by  committee,  might  have  been 
had  without  delay  through  the  medium  of  questions  put 
to  a  cabinet  officer  on  the  floor  of  the  Senate  or  the  House 
of  Representatives/'  "No  feature  of  British  parliament- 
ary practice,"  he  adds,  "is  more  useful  or  contributes 
more  to  a  public  understanding  of  what  the  executive  is 
doing,  than  the  proceedings  at  question-time  in  the  House 
of  Commons/'9 

Again,  it  is  said  that,  at  his  place  on  the  floor  of 
Congress,  a  member  of  the  cabinet  would  stand  as  the 
spokesman  of  the  administration,  and  by  explaining 
clearly  and  with  authority  the  attitude  of  the  President 
towards  a  pending  bill,  or  his  wishes  in  regard  to  con- 
templated legislation,  he  would  be  able  to  avoid  dis- 
astrous misunderstandings  and  possible  vetoes.  But 
in  fact,  no  one  of  our  recent  Presidents  has  hesitated 
for  a  moment  to  tell  Congress  what  was  his  attitude 
towards  any  pending  bill  or  to  express  in  concrete  form 
his  views  as  to  expedient  legislation.  Nor  have  Presi- 
dents hesitated  to  employ  cabinet  ministers  as  their 
spokesmen  in  these  matters. 

It  has  been  objected  that  the  new  duties  sought  to 
be  imposed  upon  the  members  of  the  cabinet,  with 
reference  to  their  attendance  upon  the  houses  of  Con- 
gress and  the  introduction  and  engineering  of  legisla- 
tion, would  absorb  so  much  of  their  time  and  attention 
that  they  would  be  unable  pro'perly  to  conduct  the  or- 
dinary administration  of  their  departments.  This 
seems  highly  probable.  But  a  remedy  was  suggested 

9  "A  Program  of  Constructive  Progress,"  ut  supra. 


POWER   TO    LEGISLATION  97 

by  the  Senate  committee  appointed  in  1881  to  con- 
sider the  question,  in  their  report  to  which  reference 
has  already  been  made,  as  follows : 

"If  it  should  appear  by  actual  experience  that  the  heads 
of  departments  in  fact  have  not  time  to  perform  the  ad- 
ditional duty  imposed  on  them  by  this  bill,  the  force  of 
their  offices  should  be  increased  or  the  duties  devolving  on 
them  personally  should  be  diminished.  An  under-secre- 
tary  should  be  appointed,  to  whom  could  be  confided  that 
routine  of  administration  which  requires  only  order  and 
accuracy.  The  principal  officers  could  then  confine  their 
attention  to  those  duties  which  require  wise  discretion 
and  intellectual  activity.  Thus  they  would  have  abun- 
dance of  time  for  their  duties  under  this  bill.  Indeed, 
your  committee  believes  that  the  public  interest  would  be 
subserved  if  the  secretaries  were  relieved  of  the  har- 
rassing  cares  of  distributing  clerkships  and  closely  su- 
pervising the  mere  machinery  of  the  departments.  Your 
committee  believes  that  the  adoption  of  this  bill  and  the 
effective  execution  of  its  provisions  will  be  the  first  step 
toward  a  sound  civil-service  reform  which  will  secure  a 
larger  wisdom  in  the  adoption  of  policies  and  a  better 
system  in  their  execution. " 

A  little  reflection  will  show  that  this  proposal  in- 
volves a  profound  change  in  cur  system  of  administra- 
tion, and  notwithstanding  the  eminence  of  the  names 
signed  to  the  committee's  report,  the  opinion  may  be 
hazarded  that  it  would  be  very  difficult  to  get  the  con- 
sent of  the  American  people  to  intrust  the  conduct  of 
their  public  business  to  a  hierarchy  of  under-secreta- 
ries  possessing  a  genius  for  "order  and  accuracy,"  but 
not  required  to  exhibit  "intellectual  activity."  Under 
such  a  regime,  the  under-secretaries  would  inevitably 
tend  to  become  permanent  officials.  Their  very  effi- 
ciency would  be  an  argument  against  their  removal 
upon  a  change  of  administration.  And  hence  it  would 


98  RELATION   OF   EXECUTIVE 

sometimes  happen  that  the  actual  government  of  the 
great  executive  departments  would  be  in  the  hands  of 
men  not  in  sympathy  with  their  political  chiefs  or  with 
the  President's  closest  advisers.  Anyone  who  realizes 
the  important  part  now  played  by  the  assistant  secre- 
taries of  the  several  departments  will  perceive  that  such 
a  system  would  lead  only  to  incessant  jealousy  and  con- 
flict within  the  department  or  else  to  stagnation  and 
decay  in  the  public  business. 

To  sum  up  the  argument,  the  proposal  to  bestow 
upon  the  members  of  the  cabinet  the  right  of  initiative 
in  legislation  and  the  right  to  take  part  in  the  debates 
of  Congress  appears  a  very  simple  matter.  But  who 
can  foretell  the  consequences  to  which  it  might  lead? 
Very  wise  were  the  words  of  Lord  Bryce,  written  now 
thirty  years  ago  but  closely  applicable  to  present-day 
conditions. 

"While  some  bid  England  borrow  from  her  daughter, 
other  Americans  conceive  that  the  separation  of  the  legis- 
lature from  the  executive  has  been  carried  too  far  in 
the  United  States,  and  suggest  that  it  would  be  an  im- 
provement if  the  ministers  of  the  President  were  per- 
mitted to  appear  in  both  houses  of  Congress  to  answer 
questions,  perhaps  even  to  join  in  debate.  I  have  no 
space  to  discuss  the  merits  of  this  proposal,  but  must  ob- 
serve that  it  might  lead  to  changes  more  extensive  than 
its  advocates  seem  to  contemplate.  The  more  the  Presi- 
dent's ministers  come  into  contact  with  Congress,  the 
more  difficult  will  it  be  to  maintain  the  independence  of 
Congress  which  he  and  they  now  possess.  When  not  long 
ago  the  Norwegian  Storthing  forced  the  king  of  Sweden 
and  Norway  to  consent  to  his  ministers  appearing  in  that 
legislature,  the  king,  perceiving  the  import  of  the  conces- 
sion, resolved  to  choose  in  future  ministers  in  accord  with 
the  party  holding  a  majority  in  the  Storthing.  It  is  hard 
to  say,  when  one  begins  to  make  alterations  in  an  old 


POWER   TO   LEGISLATION  99 

house,  how  far  one  will  be  led  on  in  rebuilding,  and  I 
doubt  whether  this  change  in  the  present  American  sys- 
tem, possibly  in  itself  desirable,  might  not  be  found  to 
involve  a  reconstruction  large  enough  to  put  a  new  face 
upon  several  parts  of  that  system."10 

No  clear  prevision  of  the  renovations  ultimately  to 
be  effected  is  of  course  possible.  But  if,  as  Bryce 
thought,  the  change  might  lead  to  struggles  on  the  part 
of  the  executive  to  maintain  its  independence  of  Con- 
gress, the  opinion  is  at  least  defensible  that  the  reaction 
might  be  in  the  other  direction,  that  is,  in  the  way  of 
increasing  the  dominance  of  the  executive  over  the 
legislative  branch.  Few  lessons  on  this  point  are  to  be 
drawn  from  our  previous  history.  But  such  as  they 
are,  they  are  instructive.  It  will  be  recalled  that  Wash- 
ington once  visited  the  Senate,  accompanied  by  the 
Secretary  of  War,  General  Knox,  for  the  purpose  of 
obtaining  the  "advice  and  consent"  of  the  Senate  on 
certain  matters  connected  with  the  negotiation  of  a 
treaty.  The  seven  propositions  submitted  were  so 
framed  that  they  could  all  be  answered  by  a  simple 
affirmative  or  negative.  Knox  had  with  him  a  paper 
containing  an  explanation  of  the  matters  in  question, 
and  Washington  expected  that  a  vote  (of  course  affir- 
mative) would  be  taken  immediately  upon  the  reading 
of  this  paper.  But  instead,  a  motion  was  made  to  refer 
the  matter  to  a  committee.  Upon  this  Washington 
started  to  his  feet  with  every  symptom  of  violent 
anger.  "This  defeats  every  purpose  of  my  coming 
here,"  he  exclaimed,  and  added  that  he  had  brought 
the  Secretary  of  War  with  him  to  give  every  neces- 
sary information;  that  the  Secretary  knew  all  about 

10  Bryce,  "American  Commonwealth"   (1889),  Vol.  I,  p.  284. 


ioo  RELATION    OF   EXECUTIVE 

the  business,  and  yet  he  was  delayed  and  could  not  go 
on  with  the  matter.  But  after  a  little,  the  President, 
though  professing  not  to  understand  the  necessity  for 
the  intervention  of  a  committee,  observed  that  he  had 
no  objection  to  postponing  the  matter  to  a  day  fixed  in 
the  near  future.  Senator  Maclay  (in  whose  "Journal" 
the  incident  is  recorded)  continues  thus: 

"A  pause  for  some  time  ensued.  We  waited  for  him 
to  withdraw.  He  did  so  with  a  discontented  air.  Had 
it  been  any  other  man  than  the  man  whom  I  wish  to  re- 
gard as  the  first  character  in  the  world,  I  would  have 
said,  with  sullen  dignity.  I  cannot  now  be  mistaken. 
The  President  wishes  to  tread  on  the  necks  of  the  Senate. 
Commitment  will  bring  the  matter  to  discussion,  at  least 
in  the  committee,  where  he  is  not  present.  He  wishes  us 
to  see  with  the  eyes  and  hear  with  the  ears  of  his  Secre- 
tary only;  the  Secretary  to  advance  the  premises,  the 
President  to  draw  the  conclusions,  and  to  bear  down  our 
deliberations  with  his  personal  authority  and  presence. 
Form  only  will  be  left  to  us."  But  he  added:  "This  will 
soon  cure  itself." 


V 

THE  SELECTIVE  OR  PARTIAL  VETO 

When  an  appropriation  bill  is  passed  by  the  two 
houses  of  Congress  and  laid  before  the  President,  he 
often  finds  strong  grounds  for  disapproving  some  one 
or  more  of  its  various  items,  or  perhaps  an  irrelevant 
"rider"  attached  to  it,  while  he  is  entirely  in  favor  of 
the  rest.  Yet  he  must  deal  with  the  bill  as  a  whole. 
He  must  either  sign  it  or  return  it  with  his  objections 
to  the  house  in  which  it  originated.  The  veto  power 
given  by  the  Constitution  is  not  selective.  That  it 
should  be  made  so — that  the  President  should  be  given 
at  least  a  suspensive  veto  as  to  items  selected  from 
perhaps  a  large  number  included  in  a  bill  without  the 
necessity  of  condemning  the  whole — has  been  very 
frequently  proposed  in  Congress.  It  is  said  that  at  as 
many  as  forty-five  different  times  resolutions  for  the 
amendment  of  the  Constitution  in  this  particular  have 
been  offered.  The  matter  has  been  urged  by  several 
of  the  Presidents,  notably  by  Grant  and  Arthur,  in 
their  messages  to  Congress.  President  Grant,  in  his 
fifth  annual  message,  December  i,  1873,  recom- 
mended to  Congress  a  constitutional  amendment 

"to  authorize  the  executive  to  approve  of  so  much  of  any 
measure  passed  by  the  two  houses  of  Congress  as  his 
judgment  may  dictate,  without  approving  the  whole,  the 
disapproved  portion  or  portions  to  be  subjected  to  the 
same  rules  as  now,  to  wit,  to  be  referred  back  to  the 


104  RELATION    OF   EXECUTIVE 


3ns£'ir>  which  the  measure  or  measures  originated,  and, 
if  passed  by  a  two-thirds  vote  of  both  houses,  then  to 
become  a  law  without  the  approval  of  the  President.  I 
would  add  to  this  a  provision  that  there  should  not  be 
legislation  by  Congress  during  the  last  twenty-four  hours 
of  its  sitting,  except  upon  vetoes,  in  order  to  give  the 
executive  an  opportunity  to  examine  and  approve  or  dis- 
approve bills  understandingly."  He  thought  that  this 
"would  protect  the  public  against  the  many  abuses  and 
waste  of  public  moneys  which  creep  into  appropriation 
bills  and  other  important  measures  passed  during  the  ex- 
piring hours  of  Congress,  to  which  otherwise  due  con- 
sideration cannot  be  given." 

President  Arthur,  in  his  second  annual  message,  De- 
cember 4,  1882,  objected  to  the  practice  of  grouping 
large  numbers  of  items  of  appropriations  in  the  gen- 
eral river  and  harbor  bill.  This  practice,  he  said, 

"inevitably  tends  to  secure  the  success  of  the  bill  as  a 
whole,  though  many  of  the  items,  if  separately  consid- 
ered, could  scarcely  fail  of  rejection." 

He  urged  the  enactment  of  a  separate  bill  for  each 
such  item,  but  if  this  was  impracticable,  he  called  at- 
tention to  the  fact  that  the  constitutions  of  fourteen 
states  (at  that  time)  permitted  the  executive  to  veto 
separate  items  in  appropriation  bills,  and  said  : 

"I  commend  to  your  careful  consideration  the  question 
whether  an  amendment  of  the  federal  Constitution  in  the 
particular  indicated  would  not  afford  the  best  remedy  for 
what  is  often  grave  embarrassment  both  to  members  of 
Congress  and  to  the  executive,  and  is  sometimes  a  serious 
public  mischief." 

Arthur  was  so  convinced  of  the  necessity  of  such  an 
amendment  that,  although  no  result  followed  his  rec- 
ommendation, he  renewed  it  in  his  third  and  fourth 
annual  messages. 

Moreover,  this  proposed  change  has  been  discussed 


POWER   TO   LEGISLATION  103 

with  very  general  approbation  in  the  public  press,  and 
has  been  advocated  by  large  and  influential  civic  bodies 
and  associations  of  business  men.  Yet  the  movement 
has  hitherto  failed  to  enlist  that  united  and  determined 
popular  insistence  which  is  still  required  for  effecting 
a  change  in  the  organic  law.  It  may  be  that  it  will 
eventually  succeed.  But  if  so,  it  will  come,  as  consti- 
tutional amendments  should  come,  not  as  the  fruit  of 
sudden  impulse,  but  as  the  result  of  a  sound  and  nat- 
ural growth  in  our  political  institutions. 

Executive  authority  to  veto  separate  items  in  ap- 
propriation bills  first  appears  in  the  constitution  of  the 
Confederate  States,  adopted  in  1861.  The  same  clause 
was  written  into  the  constitutions  of  two  or  three  of 
the  southern  states  during  the  reconstruction  period, 
and  has  met  with  such  general  favor  on  the  part  of  the 
states  that  it  is  now  a  part  of  the  fundamental  law  of 
no  less  than  thirty-seven  of  them.  That  is  to  say,  the 
governor  now  possesses  this  authority  in  all  of  the 
states  except  five  of  the  New  England  states  (Massa- 
chusetts having  given  her  governor  the  right  of  partial 
veto  by  constitutional  amendment  in  1918),  North 
Carolina  (where  he  has  no  veto  power  at  all),  and  a 
group  of  five  central  or  western  states  comprising  In- 
diana, Iowa,  Nevada,  Tennessee,  and  Wisconsin.  It  is 
also  a  significant  fact  that  Congress  has  extended  this 
power  to  the  Governor  of  Porto  Rico  and  the  Gover- 
nor-General of  the  Philippines  in  the  recent  acts  pro- 
viding for  the  civil  government  of  those  possessions. 

That  the  purpose  and  operation  of  this  selective  veto 
may  be  made  clear,  it  will  be  appropriate  to  quote  here 
the  provision  of  the  Constitution  of  New  York  on  the 


104  RELATION    OF   EXECUTIVE 

subject,  which  may  be  taken  as  typical  of  the  rest.    It 
is  as  follows : 

"If  any  bill  presented  to  the  governor  contain  several 
items  of  appropriation  of  money,  he  may  object  to  one 
or  more  of  such  items,  while  approving  of  the  other  por- 
tion of  the  bill.  In  such  case,  he  shall  append  to  the  bill, 
at  the  time  of  signing  it,  a  statement  of  the  items  to 
which  he  objects,  and  the  appropriation  so  objected  to 
shall  not  take  effect.  If  the  legislature  be  in  session,  he 
shall  transmit  to  the  house  in  which  the  bill  originated  a 
copy  of  such  statement,  and  the  items  objected  to  shall 
be  separately  considered.  If  on  reconsideration  one  or 
more  of  such  items  be  approved  by  two-thirds  of  the 
members  elected  to  each  house,  the  same  shall  be  part  of 
the  law,  notwithstanding  the  objections  of  the  governor." 

Some  state  governors,  including  ex-Governor  Whit- 
man of  New  York,  have  strongly  urged  upon  the  state 
legislatures  the  submission  of  a  constitutional  amend- 
ment which  would  permit  the  executive  not  only  to  "ob- 
ject" to  particular  items,  but  to  "reduce"  those  deemed 
excessive.  And  in  Massachusetts  this  has  been  ac- 
complished by  an  amendment  adopted  in  1918,  which 
provides  that  "the  governor  may  disapprove  or  reduce 
items  or  parts  of  items  in  any  bill  appropriating 
money."  This  seems  a  logical  extension  of  the  power 
already  granted.  For  it  might  well  happen  that  an  ap- 
propriation for  a  particular  public  object  might  be  not 
only  commendable  but  even  necessary  for  the  efficient 
conduct  of  government,  and  yet  a  governor,  exercising 
his  conscientious  judgment  on  the  subject,  might  con- 
sider it  grossly  excessive.  But  legislatures  hesitate  at 
this  point.  To  enlarge  the  governor's  power  in  this 
respect  seems  too  complete  a  surrender  of  the  control 
of  the  purse,  which  historically  does  not  belong  to  the 


POWER   TO    LEGISLATION  105 

executive  branch.  Yet  the  governors  of  several  other 
states  have  claimed  that  their  constitutional  authority 
to  "disapprove"  items  in  appropriation  bills  included 
the  right  to  reduce  those  objected  to  in  amount.  The 
governor  of  Pennsylvania  has  more  than  once  acted  on 
this  assumption,  and  he  has  been  sustained  by  a  de- 
cision of  the  Supreme  Court  of  that  state.  In  four  or 
five  other  states  the  same  course  has  been  taken  by  the 
executive,  but  the  courts  have  not  yet  passed  upon  its 
legality.  In  Colorado,  in  view  of  the  fact  that  the  legis- 
lature is  prohibited  from  making  appropriations  in  ex- 
cess of  the  amount  provided  for  by  tax  laws  then  in 
existence  or  enacted  for  the  purpose,  the  Supreme 
Court  of  that  state  says  that  the  clause  in  the  consti- 
tution giving  this  power  to  the  governor 

"shows  a  clear  purpose  to  invest  the  executive  with  dis- 
cretion to  save  such  appropriations  as  are  necessary  to 
defray  the  expenses  of  the  government,  without  the  dan- 
ger of  incumbering  or  defeating  them  by  excessive  or  im- 
provident expenditures." 

In  Illinois  and  Mississippi,  however,  the  courts  have 
ruled  that  the  power  given  to  the  governor  to  veto  any 
distinct  item  or  section  in  an  appropriation  bill  does 
not  give  him  authority  to  disapprove  of  a  part  of  a 
distinct  item  and  approve  the  remainder,  and  if  he 
vetoes  a  part  of  an  item,  as  by  striking  out  the  words 
"per  annum"  or  by  approving  part  of  an  item  and  dis- 
approving the  remainder,  his  action  is  void.  And  in 
Oklahoma  it  has  been  decided  that  when  an  appropria- 
tion bill  contains  only  a  single  item,  the  governor  can- 
not approve  the  appropriation  and  the  amount  of  it  and 
at  the  same  time  disapprove  the  parts  of  the  act  which 


106  RELATION    OF   EXECUTIVE 

direct  how  the  appropriated  funds  shall  be  apportioned. 
But  if  the  governor  is  to  be  permitted  to  exercise 
the  veto  power  upon  separate  portions  of  a  bill,  why 
stop  at  appropriation  bills  ?  South  Carolina  and  Wash- 
ington authorize  their  governors  to  veto  any  section 
of  any  bill  presented  to  them.  In  Alabama,  the  con- 
stitution authorizes  the  governor  to  return  a  bill  to  the 
legislature  without  his  approval,  but  with  a  message 
proposing  amendments  "which  would  remove  his  ob- 
jections/' If  both  houses  accept  the  amendments,  the 
bill  is  then  returned  to  the  governor  to  be  acted  on  as 
in  other  cases.  If  either  rejects  the  amendments,  it 
must  reconsider  the  bill.  If  both  reject  the  amend- 
ments by  a  majority  of  the  whole  number  of  members 
elected  to  each  house,  the  bill  becomes  a  law.  In 
Massachusetts,  it  is  the  privilege  of  the  governor, 
within  five  days  after  any  bill  shall  have  been  laid  be- 
fore him,  to  return  it  to  that  branch  of  the  legislature 
in  which  it  originated,  with  a  recommendation  that  any 
amendment  or  amendments  specified  by  him  be  made 
therein.  So  also  in  Australia, 

"the  Governor-General  may  return  to  the  house  in  which 
it  originated  any  proposed  law  so  presented  to  him,  and 
may  transmit  therewith  any  amendments  which  he  may 
recommend,  and  the  houses  may  deal  with  the  recom- 
mendation." 

In  Virginia,  if  the  governor 

"approves  the  general  purpose  of  any  bill,  but  disap- 
proves any  part  or  parts  thereof,  he  may  return  it,  with 
recommendations  for  its  amendment,  to  the  house  in 
which  it  originated,  whereupon  the  same  proceedings 
shall  be  had  in  both  houses  upon  the  bill  and  his  recom- 
mendations in  relation  to  its  amendment  as  is  above  pro- 
vided in  relation  to  a  bill  which  he  shall  have  returned 


POWER   TO   LEGISLATION  107 

without  his  approval  and  with  his  objections  thereto;  pro- 
vided that  if,  after  such  reconsideration,  both  houses,  by 
a  vote  of  a  majority  of  the  members  present  in  each, 
shall  agree  to  amend  the  bill  in  accordance  with  his 
recommendation  in  relation  thereto,  or  either  house  by 
such  vote  shall  fail  or  refuse  to  so  amend  it,  then,  and  in 
either  case,  the  bill  shall  be  again  sent  to  him,  and  he  may 
act  upon  it  as  if  it  were  then  before  him  for  the  first 
time." 

And  this  enlarged  participation  of  the  executive  in  the 
business  of  making  the  laws,  either  by  the  selective 
veto  or  by  the  offering  of  amendments,  is  familiar  in 
the  countries  of  Latin- America,  not  only  in  practice 
but  by  the  specific  authorization  of  their  constitutions. 
In  Mexico,  the  Argentine,  Paraguay,  Colombia,  and 
Panama,  the  president  may  veto  any  bill  in  whole  or  in 
part.  In  Ecuador  and  Costa  Rica,  his  objections  to 
any  bill  may  take  the  form  of  corrections,  modifica- 
tions, or  amendments.  The  constitutional  provision  in 
the  last-named  republic  is  quite  interesting.  It  is  as 
follows : 

"The  executive  power  may  object  to  any  bill,  either  be- 
cause he  judges  it  as  a  whole  to  be  inadvisable  or  because 
he  believes  it  necessary  that  it  should  be  amended  or  re- 
formed, and  in  the  latter  case  he  shall  propose  the  changes 
to  be  made.  ...  If  the  modifications  [proposed  by  the 
executive]  are  adopted,  the  bill  shall  be  sent  to  the  ex- 
ecutive power,  which  cannot  in  this  case  refuse  its  ap- 
proval. If  the  amendments  are  rejected,  and  the  two- 
thirds  vote  necessary  to  pass  the  bill  is  not  secured,  it 
shall  be  placed  in  the  archives  and  cannot  be  considered 
again  until  the  next  ordinary  session."  , 

This  system  of  permitting  the  executive  authority 
to  point  out  defects  in  a  bill  or  make  suggestions  for 
its  emendation,  without  being  under  the  necessity  of 
undoing  the  entire  work  of  the  legislature  upon  it  by 


io8  RELATION    OF   EXECUTIVE 

his  veto,  has  been  explained  and  defended  by  a  for- 
mer governor  of  Alabama  in  a  paper  recently  pub- 
lished, from  which  the  following  quotations  are  taken : 

"In  Alabama  the  power  to  veto  has  been  accompanied 
with  the  power  to  amend,  a  power  which  we  believe  is  not 
granted  to  the  executive  under  the  terms  of  the  constitu- 
tion of  any  other  state,  except  in  a  modified  form  in  the 
state  of  Virginia,  where  the  governor  is  permitted  to 
suggest,  but  not  to  initiate,  amendments.  In  the  exercise 
of  this  prerogative  in  Alabama,  the  governor  may  return 
bills  presented  to  him  without  giving  his  approval  and 
may  suggest  and  prepare  amendments  which  would  re- 
move his  objections.  These  amendments  the  legislature 
may  concur  in,  or,  not  concurring,  it  may  proceed  to  pass 
the  bill  over  the  veto,  as  in  cases  where  the  power  to 
amend  is  not  given. 

"This  power  of  amendment,  while  a  new  idea  in  our 
theory  of  government,  has  proved  to  be  of  great  value. 
By  its  exercise  the  governor  has  been  enabled  in  many 
instances  to  amend  a  meritorious  statute,  otherwise  un- 
constitutional, so  as  to  give  it  validity,  or  to  suggest  and 
submit  additions  or  call  attention  to  omissions  which 
would  better  adapt  the  proposed  law  to  the  conditions  it 
was  designed  to  meet.  Nor  is  this  power  any  undue  ex- 
tension of  the  executive  function.  If  the  governor  is 
properly  a  part  of  the  law-making  power  to  the  extent 
of  approving  or  disapproving  bills  or  initiating  legisla- 
tion by  submitting  his  recommendations  in  the  form  of 
bills,  if  the  public  is  entitled  to  his  judgment  on  the  laws 
affecting  it,  it  is  an  illogical  limitation  on  that  duty  to 
restrain  it  within  the  narrow  channels  of  approval  or 
disapproval  of  a  bill  as  it  stands,  when,  with  the  elimina- 
tion of  unwise  provisions  or  the  addition  of  needed  sec- 
tions, it  could  be  easily  altered  into  fitness  to  serve  a 
beneficial  purpose. 

"But  it  may  be  claimed  that  by  conferring  on  the  gov- 
ernor the  veto  power  vested  in  him  by  the  Alabama  con- 
stitution we  would  be  delegating  to  him  legislative  func- 
tions. It  is  well,  however,  to  remember  that  the  capa- 
city of  a  law  to  serve  the  purposes  for  which  it  is  designed 


POWER   TO    LEGISLATION  109 

cannot  be  fully  known  until  it  is  put  into  operation.  It 
is  in  the  execution  of  laws  that  their  defects  become  ap- 
parent. The  executive  has,  therefore,  a  practical  ex- 
perience in  which  members  of  the  legislature  are  fre- 
quently and  of  necessity  wanting,  which  peculiarly  quali- 
fies him  to  point  out  the  parts  in  which  a  proposed  law  is 
insufficient,  onerous,  or  ill-considered,  and  to  remove  by 
his  amendment  those  features  which  bear  too  heavily  on 
rights  which  should  not  be  burdened  or  impaired,  or  to 
add  those  without  which  the  act  would  be  ill-balanced, 
ineffective,  or  incapable  of  practical  or  proper  enforce- 
ment. Hence  it  is  apparent  that  the  power  to  amend  a 
bill  as  provided  in  the  Alabama  constitution  is  intimately 
related  to  the  executive  function,  and  only  gives  the 
people  the  benefit  of  the  knowledge  which  a  governor  ac- 
quires by  the  exercise  of  the  duties  of  the  chief  executive 
office."1 

Sound  reasons  for  granting  a  partial  or  discrimi- 
native veto  to  the  President  of  the  United  States,  in 
respect  to  money  bills,  are  not  far  to  seek.  Our  whole 
wasteful  and  haphazard  method  of  making  appropria- 
tions is  at  fault.  ''Pork-barrel"  legislation  is  a  no- 
torious and  malodorous  fact.  So  also  is  the  pernicious 
habit  of  attaching  "riders"  to  appropriation  bills,  often 
totally  unrelated  to  the  general  subject,  and  which 
would  surely  incur  the  executive  disapproval  if  pre- 
sented separately.  Arguing  for  a  constitutional 
amendment  to  counteract  these  tendencies,  a  respecta- 
ble newspaper  has  recently  observed: 

"One  of  the  great  evils  of  legislation,  state  and  na- 
tional, lies  in  the  fact  that  vicious  items  find  their  way 
into  appropriation  bills,  and  remain  there  because  the  ex- 
ecutive must  take  his  choice  between  vetoing  a  bill  gen- 
erally meritorious  or  necessary  for  the  operation  of  gov- 
ernment affairs,  or  accepting  it  despite  its  bad  features. 

1  Hon.  Emmet  O'Neal,  "Strengthening  the  Power  of  the  Ex- 
ecutive," in  Virginia  Law  Review,  December,  1917,  pp.  163-165. 


i  io  RELATION    OF   EXECUTIVE 

The  public  buildings  bill,  the  river  and  harbors  bill,  and 
similar  other  measures,  ordinarily  contain  many  articles 
of  merit  along  with  others  of  no  merit,  which  are  put 
there  as  a  sop  to  members  whose  votes  are  needed  to 
pass  the  legislation,  or  at  the  behest  of  members  who  are 
anxious  to  get  something  out  of  the  public  treasury  for 
their  districts.  The  President  cannot  approve  the  good 
features  of  the  bill  and  strike  out  the  bad,  but  must  ap- 
prove the  whole  or  veto  it.  Under  the  proposed  amend- 
ment a  President  could  approve  a  bill  in  principle  and 
strike  out  its  objectionable  features.  Hardly  anyone  will 
quarrel  with  the  wisdom  of  a  policy  which  will  permit  of 
the  exercise  of  such  discretion.  Then  there  is  the  habit 
of  attaching  riders  to  appropriation  bills  as  a  means  of 
jamming  legislation  through.  A  matter  may  have  no 
more  bearing  on  the  bill  to  which  it  is  attached  as  a  rider 
than  the  canals  of  Mars  have  with  the  price  of  eggs,  but 
it  is  attached  and  passed,  and  when  the  measure  comes 
before  the  executive  he  has  his  choice  between  signing  the 
bill,  rider  and  all,  or  vetoing  some  appropriation  measure 
whose  passage  is  essential." 

Furthermore,  bills  for  raising  revenue  might  often 
be  more  acceptable  to  the  country  at  large  if  subject 
to  executive  revision  item  by  item.  At  least  the  pos- 
session of  such  a  power  by  the  President  would  do 
away  with  the  unseemly  spectacle  (witnessed  in  some 
former  administrations)  of  bargaining  in  progress 
over  a  tariff  or  revenue  bill  between  the  White  House 
and  the  Capitol. 

But  on  the  other  hand,  do  we  seriously  wish  to  add 
anything  to  the  transcendent  powers  already  possessed 
by  the  President?  Leaving  wholly  aside  the  special 
exigencies  created  by  the  recent  war,  and  considering 
only  the  facts  as  recorded  in  the  preceding  pages  of 
this  volume,  it  is  not  too  much  to  say  that  the  presi- 
dency has  grown  into  an  office  of  such  predominant 


POWER   TO    LEGISLATION  in 

influence  and  tremendous  power  as  would  utterly  have 
appalled  the  founders  of  the  American  democracy,  and 
such  as  were  but  dimly  within  the  vision  of  even  the 
fathers  of  the  present  generation.  Would  it  be  wise, 
would  it  be  prudent,  in  view  of  all  possible  eventuali- 
ties, to  withdraw  from  Congress  any  remnant  of  its 
fast  diminishing  control  of  the  public  interests? 

Counsels  of  wisdom  and  prudence  in  this  matter 
have  been  expressed  by  one  of  our  former  Presidents, 
to  which  it  would  be  well  to  give  heed. 

"While  for  some  purposes  it  would  be  useful  for  the 
executive  to  have  the  power  of  partial  veto,  if  we  could 
always  be  sure  of  its  wise  and  conscientious  exercise,  I 
am  not  entirely  sure  that  it  would  be  a  safe  provision. 
It  would  greatly  enlarge  the  influence  of  the  President, 
already  large  enough  from  patronage  and  party  loyalty, 
and  other  causes.  I  am  inclined  to  think  that  it  is  bet- 
ter to  trust  to  the  action  of  the  people  in  condemning  the 
party  which  becomes  responsible  for  such  riders  than  to 
give,  in  such  a  powerful  instrument  like  this,  a  tempta- 
tion to  its  sinister  use  by  a  President  eager  for  continued 
political  success.  This  use  by  Congress  of  riders  upon 
appropriation  bills  to  force  a  President  to  consent  to 
legislation  which  he  disapproves  shows  a  spirit  of  de- 
structive factionalism  and  a  lack  of  a  sense  of  responsi- 
bility for  the  maintenance  of  the  government.  If  such  a 
sense  of  responsibility  does  not  pervade  all  branches  of 
the  government,  executive,  legislative,  and  judicial,  the 
government  cannot  remain  a  going  concern.  Instances  of 
abuse  of  this  sort  by  Congress,  therefore,  must  be  re- 
garded as  exceptional,  as  indeed  they  are,  and  an  effort 
to  remedy  them  by  a  change  in  constitutional  provision 
would  be  legislation  intended  to  pump  patriotism  into 
public  officers  by  force.  This  method  will  certainly  be 
found  futile  if  such  patriotism  and  sense  of  responsibil- 
ity do  not  exist  without  it.  If  it  is  urged  that  the  Presi- 
dent should  have  power  to  veto  items  in  appropriation 


ii2  RELATION    OF   EXECUTIVE 

bills  to  restrain  legislative  extravagance,  the  answer  is 
that  this  is  not  the  best  way.  The  proper  remedy  for 
that  evil  is  the  budget  amendment/'2 

If  we  examine  this  question  in  the  light  of  actual  ex- 
amples drawn  from  our  legislative  history,  it  will  be- 
come apparent  that  the  power  of  a  selective  veto  would 
be  of  no  avail  to  a  President  who  should  be  opposed 
by  a  strong  majority  in  Congress,  that  it  is  unneces- 
sary to  a  President  who  has  a  decisive  control  over 
Congress,  and  that  it  could  possibly  be  useful  only  in 
cases  where  the  executive  is  in  generally  harmonious 
relations  with  the  legislature  but  does  not  lead  or  di- 
rect it.  For  an  instance  of  the  first  category,  the  army 
appropriation  bill  of  1867  contained  a  rider  providing 
that  the  President's  orders  to  the  army  should  be  given 
only  through  the  General  of  the  Army,  who  could  not 
be  removed  from  office  without  the  previous  approval 
of  the  Senate.  This  was  intended  to,  and  did,  virtu- 
ally depose  the  President  from  the  exercise  of  his  func- 
tions as  commander  in  chief.  The  bill  also  contained 
a  clause  ordering  the  disbanding  of  the  militia  of  all 
the  states  lately  in  rebellion.  Both  these  provisions 
were  violently  distasteful  to  Andrew  Johnson,  then 
President.  But  he  could  not  veto  them  without  de- 
stroying the  entire  bill.  He  knew  that  if  he  took  that 
course  the  obnoxious  measures  would  sooner  or  later 
be  enacted  over  his  veto.  But  only  two  days  remained 
of  the  session.  Therefore  he  returned  the  bill  with 
his  signature,  but  with  a  message  that  he  approved  it 
only  to  save  the  appropriation  and  that  he  "protested*' 
against  the  riders. 

2  William  H.  Taft,  "Our  Chief  Magistrate,"  p.  27. 


POWER   TO    LEGISLATION  113 

But  on  the  other  hand,  in  the  summer  of  1918,  with- 
in the  space  of  two  weeks,  President  Wilson  vetoed  no 
less  than  three  of  the  great  appropriation  bills,  in  each 
case  because  of  his  objection  to  some  particular  item 
or  provision,  and  yet  the  appropriations  were  not  lost. 
This  result  followed  from  his  powerful  influence  with 
Congress.  On  June  29th,  he  sent  a  message  to  the 
House  refusing  his  approval  of  the  annual  post-office 
appropriation  bill,  because  he  objected  to  an  item  in  it 
which  made  provision  for  continuing  the  pneumatic 
mail-tube  system  in  certain  of  the  large  cities.  It  will 
be  seen  that,  in  order  to  express  his  disagreement  with 
this  one  detail,  he  was  obliged  to  veto  the  entire  bill, 
although  it  was  the  act  which  was  essential  to  the  con- 
tinuation of  the  entire  postal  service  after  July  ist. 
But  what  happened  wras  that,  after  an  ineffectual  at- 
tempt to  pass  the  bill  over  the  veto,  the  committee  re- 
ported a  new  bill  to  the  House,  which  was  absolutely 
identical  with  the  former  bill  except  for  the  omission 
of  the  item  objected  to,  and  this  was  passed  without 
debate  and  without  a  roll  call.  And  this  was  done  on 
the  very  same  day  on  which  the  veto  message  was  re- 
ceived, and  later  in  the  day  the  Senate  passed  the 
amended  bill.  Again,  on  the  ist  of  July,  the  President 
vetoed  the  legislative,  executive,  and  judicial  appro- 
priation bill.  The  reason  was  that  he  objected  to  the 
so-called  "Borland  amendment,"  which  would  have 
required  the  clerks  in  the  governmental  departments 
to  work  eight  hours  a  day  instead  of  seven,  without 
an  increase  of  pay.  On  the  same  day,  the  House,  by 
a  vote  of  246  to  50,  refused  to  override  the  President's 
veto,  and  on  the  following  day,  this  great  appropria- 


ii4  RELATION   OF   EXECUTIVE 

tion  bill  was  passed,  with  the  Borland  amendment 
eliminated.  On  the  I2th  of  July,  the  President  vetoed 
the  agricultural  appropriation  bill  because  of  his  ob- 
jection to  an  item  in  it  which  fixed  the  price  of  wheat 
at  $2.40  per  bushel.  On  the  following  day  it  became 
apparent  that  the  bill  could  not  be  passed  over  his 
veto,  but  further  action  on  it  was  temporarily  post- 
poned because  of  the  agreement  of  Congress  at  that 
time  to  take  a  recess. 

Another  view  of  the  subject,  but  leading  to  the  same 
conclusion,  was  presented  by  the  Bureau  of  Municipal 
Research  in  its  appraisal  of  the  constitution  and  gov- 
ernment of  New  York,  prepared  for  submission  to  the 
constitutional  convention  of  that  state  in  1915.  Speak- 
ing of  the  provision  allowing  the  governor  to  veto 
separate  items  in  appropriation  bills,  it  was  said: 

"Under  such  circumstances  the  governor  is  held  re- 
sponsible for  the  acceptance  or  reduction  of  items  as 
passed  in  measures  for  which  he  is  not  responsible.  The 
power  operates  as  a  check  on  an  irresponsible  legislature. 
It  does  not  cure  irresponsibility.  It  does  not  supply 
leadership.  It  does  put  into  the  hands  of  the  governor 
the  power  to  punish  political  enemies  by  using  the  prun- 
ing knife  where  he  will,  in  the  plea  of  economy.  The 
power  is  not  constructive,  but  may  be  made  highly  de- 
structive. It  transfers  from  the  legislative  committee 
room  to  the  executive  chamber  all  the  pressure  that  has 
been  brought  to  bear  in  furtherance  of  the  plans  of  an 
irresponsible  boss.  It  simply  invites  another  dark-room 
proceeding,  instead  of  having  the  business  of  the  state 
done  in  the  open,  in  the  face  of  the  opposition/' 

If  the  legislature  is  still  in  session  when  the  gover- 
nor acts  on  the  bill, 

"he  may,  if  he  chooses,  get  a  fair  statement  of  a  con- 
sistent fiscal  policy  before  the  legislature  for  discussion 


POWER   TO    LEGISLATION  115 

and  action.  But  usually  the  legislature  has  adjourned 
before  the  governor  has  an  opportunity  to  act  on  many 
appropriations." 

The  Bureau  thinks  that  a  much  better  plan  is  that 
of  a  budget  (not  merely  advisory  but  compulsory), 
under  which  the  governor  is  required  to  formulate, 
submit,  and  defend  the  appropriation  bills,  thus 

"securing  economy  and  responsibility  in  the  appropriation 
and  management  of  public  funds/' 

The  question  of  enlarging  the  veto  power  should  not 
be  considered  as  an  isolated  problem.  It  is  but  an  ele- 
ment, or  a  symptom,  of  that  vigorous  trend  towards 
executive  leadership  which  is  so  markedly  developing 
in  our  political  philosophy,  and  which,  in  respect  to  the 
science  of  government,  many  observers  believe  to  be 
the  most  significant  phenomenon  of  our  times.  The 
new  program,  as  we  have  seen,  involves  supplementing 
the  administrative  and  appointive  powers  of  the  ex- 
ecutive branch  by  intrusting  to  it  also  both  initiative 
and  responsibility  in  the  framing  of  the  laws.  It  is  a 
departure  from  the  old  theory  that  the  guardianship 
of  the  public  welfare  was  vested  in  the  legislature. 
The  new  theory  would  confide  it  to  the  executive.  The 
selective  veto  is  a  step  in  that  direction. 


VI 

EXECUTIVE  ORDERS  AND  DECREES 

In  all  strong  governments  which  have  recognized 
the  division  of  powers,  thus  setting  the  executive  over 
against  the  legislative  branch,  it  has  been  a  part  of  the 
struggle  for  supremacy  between  them  that  the  execu- 
tive should  seek  to  obtain  for  itself  a  more  or  less  ex- 
tensive power  of  law-making  independent  of  the  legis- 
lative body ;  that  is,  a  power  to  give  to  its  ordinances, 
by  whatever  name  they  may  be  called  (orders,  decrees, 
regulations,  or  proclamations)  the  force  of  law  in  the 
sense  that  they  shall  be  imperative  and  that  they  shall 
be  enforceable  by  the  courts,  yet  without  the  concur- 
rence or  previous  authorization  of  the  legislature.  Al- 
most everywhere  this  encroaching  tendency  has  been 
checked.  Almost  everywhere  constitutional  practice 
has  settled  the  rule  that  executive  ordinances,  when  of 
such  a  character  as  to  affect  the  general  public,  are  not 
"laws"  in  this  sense  except  when  made  in  pursuance  of 
explicit  constitutional  or  statutory  authority.  Lack- 
ing this  sanction,  they  may  indeed  fall  within  the 
proper  scope  of  administrative  action,  but  they  serve 
only  the  purpose  of  notice,  warning,  or  exhortation, 
and  do  not,  like  "laws"  properly  so  called,  restrain  the 
citizen  from  doing  something  otherwise  lawful,  or 
force  him  into  a  course  of  conduct  to  which  he  was  not 
previously  compelled.  Yet,  in  the  mind  of  a  strong 


POWER   TO    LEGISLATION  117 

and  dominant  executive  officer,  determined  upon  lead- 
ership, there  must  always  be  present  the  temptation  to 
put  a  very  liberal  construction  upon  such  regulation- 
making  powers  as  are  implicated  in  his  constitutionally 
defined  powers  and  prerogatives,  and  likewise  to  push 
to  the  limit  and  perhaps  beyond  it  any  authority  dele- 
gated to  him  by  the  legislature  for  filling -in  the  details 
of  legislation  on  a  given  subject  or  carrying  a  statute 
into  effect.  And  given  a  contest  for  leadership  and 
control,  this  weapon  in  the  hands  of  the  executive  is 
neither  antiquated  nor  rusty.  It  is  more  powerful  now 
than  ever.  And  a  study  of  its  use  and  possibilities  is 
of  especial  importance  in  its  relation  to  the  general  sub- 
ject of  the  growth  of  executive  power,  in  view  of  the 
very  marked  and  increasing  tendency  of  legislative 
bodies,  when  dealing  with  subjects  of  broad  general  in- 
terest, to  satisfy  themselves  with  outlining  a  general 
plan  or  prescribing  general  principles  in  their  statute, 
leaving  the  details  of  their  enactments  and  all  that 
concerns  their  practical  operation  to  be  governed  by 
regulations  made  by  the  executive  or  administrative 
officers. 

Before  attempting  a  description  of  the  President's 
existing  authority  in  these  matters,  or  a  forecast  of  its 
possible  future  use,  it  will  be  well  to  survey  the  consti- 
tutional history  and  practice  of  some  other  countries, 
in  order  to  see  what  lessons  of  experience  or  warning 
may  be  gleaned  from  them. 

In  England,  long  after  the  establishment  of  parlia- 
mentary government,  many  kings  in  succession  chafed 
under  the  restraints  which  Parliament  imposed  upon 
them,  and  sought  to  recover  the  power  of  independent 


ii8  RELATION    OF   EXECUTIVE 

legislation  claimed  to  have  belonged  to  their  predeces- 
sors. Not  merely  that  English  kings  periodically  as- 
serted the  right  to  suspend  acts  of  Parliament,  but  they 
coveted  the  right  to  go  their  own  way  in  the  making 
of  rules  for  the  governance  of  the  realm  alongside  of 
Parliament  or  without  reference  to  it.  They  cast  en- 
vious eyes  upon  the  traditionary  powers  once  ascribed 
to  the  King  in  Council,  and  sought  to  make  ordinances 
and  proclamations  emanating  from  that  source  what 
they  once  had  been,  a  teal  and  living  force.  Henry 
VIII  once  caught  Parliament  in  a  subservient  or  com- 
plaisant mood.  In  1539,  an  act  was  passed  providing 
that 

"the  King  for  the  time  being,  with  the  advice  of  his  Coun- 
cil, or  the  more  part  of  them,  may  set  forth  proclama- 
tions under  such  penalties  and  pains  as  to  him  and  them 
shall  seem  necessary,  which  shall  be  observed  as  though 
they  were  made  by  Act  of  Parliament ;  but  this  shall  not 
be  prejudicial  to  any  person's  inheritance,  offices,  liber- 
ties, goods,  chattels,  or  life ;  and  whosoever  shall  willing- 
ly offend  any  article  in  the  said  proclamations  shall  pay 
such  forfeitures,  or  be  so  long  imprisoned,  as  shall  be 
expressed  in  the  said  proclamations ;  and  if  any  offending 
will  depart  the  realm  to  the  intent  he  will  not  answer  his 
said  offense,  he  shall  be  adjudged  a  traitor." 

But  this  amazing  piece  of  legislation  was  repealed  in 
the  reign  of  Edward  VI.  Dicey  remarks : 

"It  is  curious  to  notice  how  revolutionary  would  have 
been  the  results  of  the  statute  had  it  remained  in  force." 
One  of  them  would  have  been  that 
"an  English  king  would  have  become  nearly  as  despotic 
as  a  French  monarch/'1 

The  same  distinguished  author,  in  his  instructive 
description  of  the  constitution  of  England,  calls  at- 
1  Dicey,  "Law  of  the  Constitution,"  p.  49. 


POWER   TO    LEGISLATION  119 

tention  to  the  distinction  between  "laws"  properly  so 
called,  as  being  made  by  the  legislature,  and  "ordi- 
nances" having  the  force  of  law  though  not  in  strict- 
ness laws,  as  being  rather  decrees  of  the  executive 
power  than  acts  of  the  legislature.  He  says: 

"This  distinction  exists  in  one  form  or  another  in  most 
continental  states  and  is  not  without  great  practical  util- 
ity. In  foreign  countries,  the  legislature  generally  con- 
fines itself  to  laying  down  general  principles  of  legisla- 
tion, and  leaves  them,  with  great  advantage  to  the  pub- 
lic, to  be  supplemented  by  decrees  or  regulations  which 
are  the  work  of  the  executive.  The  cumbersomeness  and 
prolixity  of  English  statute  law  is  due  in  no  small  meas- 
ure to  futile  endeavors  of  Parliament  to  work  out  the  de- 
tails of  large  legislative  changes.  The  evil  has  become 
so  apparent  that  in  modern  times  acts  of  Parliament  con- 
stantly contain  provisions  empowering  the  Privy  Council, 
the  judges,  or  some  other  body,  to  make  rules  under  the 
act  for  the  determination  of  details  which  cannot  be  set- 
tled by  Parliament.  But  this  is  only  an  awkward  miti- 
gation of  an  acknowledged  evil,  and  the  substance  no 
less  than  the  form  of  the  law  would,  it  is  probable,  be  a 
good  deal  improved  if  the  executive  government  of  Eng- 
land could  like  that  of  France,  by  means  of  decrees,  ordi- 
nances, or  proclamations  having  the  force  of  law,  work 
out  the  detailed  application  of  the  general  principles  em- 
bodied in  the  acts  of  the  legislature."2 

As  a  matter  of  fact  both  orders  in  council  and  proc- 
lamations enter  into  the  texture  of  English  statute  law 
to  a  much  greater  degree  than  is  apparent  to  those 
who  think  of  Parliament  as  the  only  fount  of  law. 
Orders  and  proclamations  differ  in  their  formal  style 
and  language,  but  essentially  they  both  emanate  from 
the  privy  council  and  have  exactly  the  same  effect  as 
law.  An  order  in  council  is  dated  "At  the  Court  at 

2  Dicey,  op.  cit.,  p.  49. 


120  RELATION    OF   EXECUTIVE 

Buckingham  Palace/'  on  such  a  day,  "Present,  the 
King's  Most  Excellent  Majesty  in  Council,"  and  re- 
cites that  "His  Majesty  is  pleased,  by  and  with  the  ad- 
vice of  his  privy  council,  to  order,  and  it  is  hereby  or- 
dered, as  follows,"  etc.  A  royal  proclamation  is 
headed :  "By  the  King/'  and  recites  "we  have  thought 
fit,  by  and  with  the  advice  of  our  privy  council,  to  is- 
sue this  our  royal  proclamation,  and  we  do  hereby 
proclaim,  direct,  and  ordain  as  follows,"  etc.  There 
are  a  few  exceptional  cases  in  English  law  where  an 
order  or  proclamation  may  be  made  without  previous 
legislative  sanction,  as,  for  instance,  where  Parliament 
is  summoned  by  an  executive  proclamation.  But  other- 
wise it  is  a  firmly  settled  principle  that  the  sphere  of 
executive  legislation  must  be  limited  to  those  details 
as  to  which  the  authority  of  Parliament  has  been  spe- 
cifically delegated.  I  Without  such  a  basis,  an  order  in 
council  would  be  unconstitutional  in  the  English  sense. 
But  the  members  of  an  English  ministry  originate  and 
control  all  important  legislation  in  the  Parliament  then 
sitting.  And  the  ministers  constitute  the  major  part, 
practically  the  effective  part,  of  the  privy  council.  And 
both  orders  and  proclamations  purport  to  be  made  by 
the  privy  council.  (Of  course  it  is  nominally  the  King 
who  makes  the  ordinances  with  the  "advice"  of  the 
council;  but  it  is  also  true  of  acts  of  Parliament  that 
they  profess  to  be  made  by  the  King  "with  the  advice 
and  consent"  of  the  Lords  and  Commons.)  There- 
fore the  enactment  of  this  kind  of  executive  legislation 
simply  means  that  the  ministry  have  demanded  and  re- 
ceived from  their  adherents  (necessarily  constituting 
a  majority)  in  Parliament  permission  to  deal  legisla- 


POWER   TO    LEGISLATION  121 

tively  either  with  a  subject  in  general  or  with  the  de- 
tails of  a  subject  the  outlines  of  which  have  been 
sketched  in  an  act. 

As  stated  above,  those  who  have  not  studied  the  sub- 
ject might  well  be  surprised  to  learn  the  extent  to 
which  this  power  is  actually  employed.  An  English 
writer  has  recently  said:  "The  extent  to  which  we 
are  governed  at  present  by  orders  which  hardly  come 
within  the  direct  cognizance  of  the  legislature  is  much 
wider  than  most  people  are  aware  of."  The  President 
of  Harvard,  in  his  notable  book  on  the  British  govern- 
ment, observes: 

"Power  to  make  ordinances  which  have  the  force  of 
law  and  are  binding  upon  the  wjhole  community  is  fre- 
quently given  to  the  Crown  (or  more  strictly  to  the 
Crown  in  council)  by  statute,  notably  in  matters  affect- 
ing public  health,  education,  etc.,  and  the  practice  is  con- 
stantly becoming  more  and  more  extensive,  until  at  pres- 
ent the  rules  made  in  pursuance  of  such  powers — known 
as  'statutory  orders' — are  published  every  year  in  a  vol- 
ume similar  in  form  to  that  containing  the  statutes. 
Some  of  these  orders  must  be  submitted  to  Parliament, 
but  go  into  effect  unless  within  a  certain  time  an  address 
to  the  contrary  is  passed  by  one  of  the  houses,  while 
others  take  effect  at  once,  or  after  a  fixed  period,  and  are 
laid  upon  the  tables  of  the  houses  in  order  to  give  formal 
notice  of  their  adoption.  In  making  such  orders  the 
Crown  acts  by  virtue  of  a  purely  delegated  authority,  and 
stands  in  the  same  position  as  a  town  council.  The  or- 
ders are  a  species  of  subordinate  legislation,  and  can  be 
enacted  only  in  strict  conformity  with  the  statutes  by 
Which  the  power  is  granted ;  and  being  delegated,  not  in- 
herent in  the  Crown,  a  power  of  this  kind  does  not  fall 
within  the  prerogative  in  its  narrower  and  more  appro- 
priate sense."3 

3  Lowell,  "The  Government  of  England,"  Vol.  I,  p.  20. 


122  RELATION    OF   EXECUTIVE 

The  passage  quoted  describes  an  interesting  detail  in 
the  working  of  government  in  England,  as  applied  to 
the  ordinary  needs  and  problems  of  government  aris- 
ing in  times  of  peace.  But  when  a  country  enters  upon 
a  state  of  war,  not  only  are  those  needs  and  problems 
vastly  changed,  but  there  arises  at  once  the  necessity 
and  the  concurrent  impulse  to  concentrate  power  and 
authority  in  that  branch  of  the  government  which 
wields  the  sword.  In  such  a  crisis,  therefore,  it  al- 
ways happens  that  executive  orders,  decrees,  and  proc- 
lamations play  a  highly  important  part  in  the  internal 
regulation  of  the  country  and  even  in  its  international 
affairs,  and  that  there  is  neither  time  nor  disposition 
to  scrutinize  closely  the  basis  of  legislative  authoriza- 
tion on  which  they  profess  to  rest. 

The  very  words  "order  in  council"  should  recall  a 
stirring  episode  of  American  history  to  the  minds  of 
even  American  school  children.  For  it  was  the  British 
orders  in  council  of  November  n,  1807,  that  inaugu- 
rated England's  campaign  of  seizing  and  searching 
neutral  vessels  for  enemy's  goods.  These  were  coun- 
tered by  Napoleon's  executive  orders,  the  Berlin  and 
Milan  decrees  of  the  same  year.  The  result  was  the 
loss  of  hundreds  of  American  ships  and  the  almost 
total  destruction  of  American  commerce,  which  led 
to  the  embargo  and  non-intercourse  acts,  and  eventu- 
ally (at  least  as  a  chief  contributing  factor)  to  the 
war  of  1812. 

But  nothing  in  the  previous  history  of  constitutional 
government  in  the  world  is  at  all  comparable  to  what 
has  been  done  by  executive  legislation  in  England 
since  the  beginning  of  the  Great  War  in  1914.  Limi- 


POWER   TO   LEGISLATION  123 

tations  of  space  forbid  us  to  follow  this  subject  into 
all  its  ramifications.  But  it  is  believed  that  a  bare  out- 
line of  the  principal  facts  cannot  fail  to  be  impressive. 
On  the  27th  of  November,  1914,  Parliament  passed  the 
"Defense  of  the  Realm  Consolidation  Act"  (5  Geo. 
V,  c.  8).  This  simply  provided  that 

"his  majesty  in  council  has  power  during  the  continuance 
of  the  present  war  to  issue  regulations  for  securing  the 
public  safety  and  the  defense  of  the  realm." 

It  would  be  difficult  to  imagine  how  more  unlimited 
powers  of  law-making  could  be  granted  to  the  council, 
that  is,  the  Prime  Minister  and  his  associates,  than  by 
this  statute.  It  has  been  said : 

"The  provisions  of  this  act  practically  place  the  whole 
country  under  martial  law,  but  it  is  to  be  noted  that  the 
restrictions  on  the  liberty  of  the  subject  and  on  the  free- 
dom of  the  expression  of  opinion  are  only  to  continue 
during  the  present  war." 

In  pursuance  of  this  act,  and  on  the  very  day  fol- 
lowing its  enactment,  a  set  of  "Defense  of  the  Realm 
Regulations"  were  made  and  put  in  force  by  an  order 
in  council.  These  regulations  contain  sixty-three  arti- 
cles or  sections,  and  make  elaborate  and  detailed  pro- 
visions for  putting  the  country  on  a  war  basis,  for 
requisitioning  or  employing  its  manufacturing  and  in- 
dustrial resources,  for  its  external  defense,  for  pre- 
venting the  giving  of  aid  or  information  to  the  enemy, 
against  sedition,  against  espionage  and  sabotage,  mak- 
ing new  regulations  of  navigation,  and  making  viola- 
tions of  the  regulations  criminal  offenses,  and  provid- 
ing for  their  trial  before  a  court  martial  or  a  court  of 
summary  jurisdiction.  And  subsequent  regulations, 
made  under  the  same  authority,  have  carried  the  whole 


124  RELATION   OF   EXECUTIVE 

matter  into  much  greater  detail,  and  have  brought  in 
various  new  subjects,  such  as  the  important  matter  of 
food  conservation.  \  Parliament  of  course  remained  in 
session  and  continued  to  play  its  important  role  in  the 
government  of  the  country  and  the  prosecution  of  the 
war.  Though  it  had  delegated  immense  authority,  it 
did  not  abdicate.  But  under  its  express  or  tacit  au- 
thority executive  legislation  on  matters  of  vital  inter- 
est continued.  The  list  of  articles  to  be  deemed  con- 
traband of  war  and  to  be  treated  as  such  was  set  forth 
in  an  executive  proclamation,  as  were  also  the  pro- 
visions against  trading  with  the  enemy.  And  the  pro- 
vision for  adopting  and  putting  in  force  as  law  the 
so-called  "Declaration  of  London,"  affecting  neutral 
ships  and  trade,  was  made  by  an  order  in  council. 

Canada  had  a  somewhat  similar  experience  in  1917 
and  1918.  In  consequence  of  the  necessity  of  a  gen- 
eral election,  there  was  an  intermission  of  six  months 
between  the  dissolution  of  one  Parliament  and  the  as- 
sembling of  the  next,  and  during  all  this  time  the 
government  was  carried  on,  not  only  as  to  administra- 
tion, but  as  to  the  making  of  all  laws  considered  neces- 
sary in  view  of  the  conditions  created  by  the  war,  en- 
tirely by  the  ministry,  without  specific  parliamentary 
authorization,  by  means  of  orders  in  council.  Such 
orders,  so  made,  are  described  by  a  writer  on  the  sub- 
ject as  "a  comprehensive,  flexible,  speedy,  and  decisive 
instrument,  particularly  well  adapted  to  the  exigencies 
of  war-time."  In  the  Canadian  use  of  the  term  an 
"order  in  council"  purports  to  be  made  by  the  Gover- 
nor General  in  (or  by  the  advice  of)  the  council. 
Technically  it  cannot  become  effective  without  his 


POWER   TO    LEGISLATION  125 

signature.  But  just  as  the  acts  of  the  British  Parlia- 
ment speak  in  the  voice  of  the  sovereign  and  must 
receive  the  royal  assent,  though  the  King's  power  of 
veto  has  not  been  exercised  since  the  time  of  Queen 
Anne,  so  the  consent  and  signature  of  the  Governor 
General  of  Canada  to  an  order  in  council  is  only  for- 
mal, and  cases  must  be  rare  indeed  in  which  they 
would  be  refused.  Actually  such  an  order  is  a  law 
or  decree  based  upon,  and  drawn  in  accordance  with, 
a  decision  of  the  cabinet  and  signed  by  the  President 
of  Council  or  the  Prime  Minister  or  a  representative 
of  either.  The  work  of  the  council,  performed  in  such 
an  intermission,  is  of  course  subject  to  be  overridden 
and  abrogated  by  an  act  of  Parliament.  But  so  could 
any  act  of  any  previous  Parliament  be  swept  away.  It 
would  be  a  mistake,  therefore,  to  regard  these  orders 
in  council  as  in  any  sense  provisional  or  tentative, 
since  they  do  not  require  to  be  confirmed  by  act  of 
Parliament,  and  since  they  could  be  abolished  only  in 
the  same  manner  and  by  the  same  power  required  for 
the  repeal  of  a  statute.  And  it  must  be  remembered 
that  the  ministry  can  remain  in  power  only  so  long 
as  they  can  command  a  majority  in  the  House  of  Com- 
mons, so  that  it  is  easily  conceivable  that  the  attempt 
to  repeal  an  order  in  council,  if  it  affected  a  matter  of 
high  moment,  might  precipitate  a  cabinet  crisis  or  even 
lead  to  a  dissolution. 

Without  attempting  an  exhaustive  enumeration  of 
all  the  details  covered  by  the  Canadian  orders  in  coun- 
cil during  the  period  mentioned,  from  September, 
1917,  to  March,  1918,  to  mention  some  of  the  most  im- 
portant steps  taken  will  illustrate  the  wide  range  and 


126  RELATION   OF   EXECUTIVE 

extraordinary  flexibility  of  this  instrument  of  govern- 
ment. First,  the  ministry  provided  in  this  way  for  the 
working  out  and  enforcement  of  the  military  con- 
scription act.  Then  orders  in  council  created  two  new 
departments  of  the  government  with  responsible  min- 
isters at  their  head,  the  Department  of  Immigration 
and  Colonization  and  the  Department  of  Soldiers' 
Civil  Re-establishment.  By  the  same  agency  there 
came  into  being  two  important  sub-committees  of  the 
cabinet,  the  War  Committee  and  the  Reconstruction 
Committee.  Orders  in  council  provided  for  a  compre- 
hensive program  of  shipbuilding,  for  the  establishment 
of  a  bureau  or  committee  of  public  information,  for 
the  creation  of  a  war  trade  board,  for  the  reform  of 
the  civil  service  and  the  abolition  of  patronage,  for 
a  system  of  general  registration  designed  to  make  ef- 
fective for  mobilization  the  resources  and  the  man 
power  of  the  country,  and  for  the  superseding  of  the 
Food  Controller  by  the  Canadian  Food  Board  of  three 
men.  These  orders  in  council  also  included  very  strin- 
gent regulations  controlling  the  manufacture,  importa- 
tion, and  transportation  of  intoxicating  liquors,  and 
regulations  governing  the  packing  industry,  which  in 
effect  limited  the  permissible  profits  of  houses  engaged 
in  that  business  to  a  maximum  of  eleven  per  cent  on 
the  capital  invested.  In  all  this  it  is  said  that  the  gov- 
ernment were  mindful  of  the  wishes  and  preferences 
of  the  people  and  did  not  lack  the  support  of  public 
opinion.  It  was  an  experiment  to  have  the  laws  of  a 
country,  and  laws  of  transcendent  importance,  made 
by  a  small  group  of  citizens  who,  at  the  time,  were  not 
acting  as  legislators  at  all,  but  solely  as  executive  offi- 


POWER   TO    LEGISLATION  127 

cers,  and  during  a  period  of  time  which,  considering 
the  tremendous  pressure  of  war,  might  be  considered 
as  equivalent  to  a  generation  of  peace.  Yet  the  claim 
is  made  that  the  cause  of  democracy  has  not  thereby 
suffered,  but  that,  on  the  contrary,  this  radically  un- 
democratic procedure  has  demonstrated  the  funda- 
mentally democratic  character  of  the  Canadian  sys- 
tem of  government. 

That  legislation  may  be  effected  by  means  of  ex- 
ecutive orders  or  decrees,  during  the  interval  between 
sittings  of  the  legislative  body,  is  a  doctrine  entirely 
unknown  in  the  United  States,  where,  on  the  other 
hand,  it  is  the  practice  to  call  a  special  session  of  Con- 
gress when  legislation  is  needed  to  meet  an  emergency. 
But  traces  of  the  doctrine  are  found  in  the  constitu- 
tional systems  of  some  European  countries,  as,  for  ex- 
ample, in  Denmark,  where  the  25th  article  of  the  Con- 
stitution of  1866  provides  that 

"in  cases  of  special  urgency  the  King  may,  when  the 
Rigsdag  is  not  in  session,  issue  laws  of  temporary  ap- 
plication, which,  however,  shall  not  be  contrary  to  the 
constitution  and  which  shall  be  submitted  to  the  Rigsdag 
at  its  next  session/' 

The  other  principle — that  it  is  within  the  scope  of  ex- 
ecutive authority  to  make  ordinances  supplementing 
the  statutes  or  providing  for  their  effective  execution 
— is  a  familiar  and  probably  useful  feature  of  the  con- 
stitutional practice  of  the  continental  nations.  As  to 
France,  for  instance,  a  work  written  by  the  present 
President  of  the  Republic  states  that 

"in  order  to  supervise  and  insure  the  execution  of  the 
laws,  the  President  issues  general  decrees,  sometimes 
prepared  by  the  services  affected,  sometimes  further  elab- 


128  RELATION   OF   EXECUTIVE 

orated  by  the  Council  of  State,  and  always  countersigned 
by  the  Ministers.  These  are  known  as  by-laws  of  public 
administration.  They  may  complete  the  law  as  to  points 
indicated  by  the  legislator,  but  they  cannot  modify  it."4 

Executive  decrees  have  come  to  play  a  very  impor- 
tant part  in  the  government  of  the  countries  of  Cen- 
tral and  South  America.  The  constitutions  of  most 
of  those  states  give  to  their  presidents  the  power  to 
make  such  ordinances  and  regulations  as  they  may 
deem  necessary  to  facilitate  and  insure  the  execution 
of  the  laws,  though  in  Venezuela  this  may  be  done 
only  "when  a  law  so  requires  or  authorizes  in  its  text." 
In  five  countries  (the  Argentine,  Honduras,  Nicaragua, 
Paraguay,  and  Venezuela)  the  constitutions  have  been 
very  careful  to  limit  this  presidential  power  by  pro- 
viding that  executive  ordinances  or  regulations  must 
not  in  any  way  "alter  the  spirit  or  reason  of  the  law." 
In  Bolivia,  the  President  may  issue 

"decrees  and  orders  necessary  for  the  execution  of  the 
laws,  but  without  any  private  (or  personal)  definition  of 
rights  or  alteration  of  those  defined  by  the  law,  and  with- 
out contravening  its  dispositions." 

In  Haiti  and  Ecuador,  the  chief  executive 

"is  to  make  all  regulations  and  decrees  necessary  for  the 
purpose  of  executing  the  laws,  but  without  power  ever  to 
suspend  or  interpret  the  laws,  acts,  and  decrees  them- 
selves nor  to  dispense  with  their  execution." 

The  most  detailed  provision  is  found  in  the  Constitu- 
tion of  Cuba  (article  68)  as  follows: 

"The  President  has  power  to  approve  and  promulgate 
the  laws,  and  to  execute  them  and  cause  them  to  be  exe- 
cuted; to  prescribe  when  Congress  shall  not  have  done 
so,  regulations  for  the  better  execution  of  the  laws,  and 
further,  to  issue  decrees  and  orders  which  he  may  deem 

*  Raymond  Poincare,  "How  France  is  Governed,"  p.  174. 


POWER   TO   LEGISLATION  129 

necessary  to  that  end  and  so  far  as  pertains  to  the  gov- 
ernment and  administration  of  the  state,  but  without 
contravening,  in  any  case,  what  is  established  by  the  said 
laws." 

A  complete  catalogue  of  executive  ordinances  made 
under  these  constitutional  provisions  would  be  tedious 
and  not  specially  edifying.  But  for  the  purpose  of 
showing  how  far  and  in  what  varied  directions  gov- 
ernment by  executive  decree  can  be  carried  in  Latin 
America,  here  follows  a  list  selected  almost  at  random 
from  among  the  matters  regulated  by  such  decrees  in 
those  countries  within  a  period  of  not  more  than  six 
months.  It  will  be  observed  that  some  of  them  reflect 
extraordinary  conditions  created  by  the  war,  but  others 
have  no  such  foundation. 

In  Argentina,  Bolivia,  and  Mexico  executive  de- 
crees have  regulated  the  importation  and  coinage  of 
gold  and  prohibited  its  exportation. 

An  executive  decree  in  Colombia  authorizes  the 
government  to  contract  a  loan  not  to  exceed  $3,000,- 
ooo  gold. 

By  an  executive  decree  in  Guatemala,  exemption 
from  active  military  service  and  training  is  obtainable 
upon  the  payment  of  100  pesos,  gold,  annually. 

Executive  order  No.  117  in  the  Dominican  Republic 
authorizes  the  establishment  of  a  food  controller  to 
regulate  the  exportation  of  food  stuffs,  control  the  im- 
portation of  the  same,  fix  their  price  for  sale  or  ex- 
change, regulate  their  distribution,  and 

"do  such  other  things  concerning  food  stuffs  as  may  be 
considered  expedient  for  the  public  welfare." 

An  executive  decree  in  Ecuador  provides  that  the 


130  RELATION   OF   EXECUTIVE 

budget  of  receipts  and  expenditures  of  the  department 
of  war  shall  be  the  same  as  that  of  1917. 

In  Haiti,  a  presidential  decree  annuls  the  laws  under 
which  the  government  granted  concessions  for  the  con- 
struction and  operation  of  a  railway  from  Port  au 
Prince  to  Petion-Ville. 

An  executive  decree  in  Brazil  authorizes  the  Minister 
of  Agriculture  to  establish  agricultural  stations  for  the 
education  of  poor  children. 

In  the  same  state  a  similar  decree  was  made 

"to  encourage  the  raising  of  sheep  and  goats  by  co- 
operating with  the  state  and  municipal  governments  in 
importing  sheep  and  goats  for  breeding  purposes,  the 
federal  government  to  pay  one-third  of  the  cost." 

In  Chile,  an  executive  decree  authorizes  the  munici- 
pality of  Antofagasta  to  contract  a  loan  of  $8,500,000, 
the  proceeds  to  be  used  in  the  construction  of  port 
works  in  that  city. 

In  Colombia,  there  was  an  executive  decree  requir- 
ing the  reorganization  of  the  national  police,  and  pro- 
viding funds  for  the  repatriation  of  Colombian  citi- 
zens entitled  by  law  to  return  to  the  country;  and  an- 
other to  regulate  the  teaching  and  practice  of  dentistry. 

In  Panama,  an  executive  decree  has  been  issued  re- 
ducing by  fifty  per  cent  the  import  duties  on  lard. 

An  executive  decree  of  Brazil  empowers  Brazilian 
insurance  companies  to  reinsure  in  domestic  insurance 
companies  and  in  foreign  insurance  companies  of  coun- 
tries not  at  war  with  Brazil. 

In  Costa  Rica,  it  has  been  provided  by  executive  de- 
cree that  anyone  desiring  to  leave  the  country  must 
obtain  a  passport  fifteen  days  beforehand. 

Haiti  thought  it  necessary  to  declare  by  executive 


POWER   TO   LEGISLATION  131 

decree  that  all  persons  have  the  right  to  engage  in  the 
purchase  and  sale  of  all  kinds  of  national  products  in 
the  towns  and  cantons  of  the  Republic. 

In  Panama,  an  executive  decree  forbids  the  impor- 
tation of  cattle  unless  accompanied  by  certificates 
viseed  by  consuls  of  Panama  as  to  their  being  healthy. 

An  executive  decree  in  Ecuador  provides  for  the 
construction  in  the  municipality  of  Guayaquil  of  a  na- 
tional macadamized  highway  with  funds  obtained  from 
the  tax  on  automobiles  and  carriages. 

From  Mexico  we  learn  that 

"the  governor  of  the  State  of  Sonora  has  prohibited  the 
sale  of  intoxicating  liquors  in  that  state  under  severe 
penalties,  and  has  ordered  that  all  alcoholic  beverages  in 
the  state  shall  be  collected  and  destroyed/' 

In  the  United  States,  under  the  constitutional  theory 
and  practice  which  have  prevailed  up  to  the  present 
time,  not  one  of  the  laws  (for  they  really  are  laws) 
mentioned  above  would  have  been  enacted  by  any  ex- 
ecutive officer  on  his  own  initiative  and  authority. 
Each  of  the  matters  involved  would  have  been  made 
the  subject  of  statutory  legislation,  either  by  Congress 
or  by  a  state  legislature  as  the  case  might  be.  But  if 
the  unhindered  exercise  by  the  executive  of  an  ill-de- 
fined power  to  make  laws  tends  in  the  direction  of 
autocracy,  that  phrase  does  not  measure  the  whole  ex- 
tent of  the  danger.  For  if  the  limitations  marked  out 
by  a  written  constitution  may  with  impunity  be  over- 
stepped in  this  direction,  why  not  in  any  or  all  ?  What 
this  leads  to  is  shown  in  a  press  despatch  from  Pana- 
ma, dated  June  22,  1918,  which  was  carried  in  the 
principal  American  newspapers.  It  stated: 


132  RELATION   OF   EXECUTIVE 

"President  Urriola  has  issued  a  decree  deferring  for 
six  months  the  elections  which  were  set  for  July.  The 
reason  given  for  this  action  is  that  it  will  permit  the 
Panama  government  to  correct  conditions  in  the  cities  of 
Colon  and  Panama  and  put  into  operation  regulations  re- 
quested by  the  American  military  authorities.  A  protest 
against  the  suspension  of  the  elections  has  been  made  to 
Washington  by  the  opposition  political  party,  on  the 
ground  that  the  President's  action  is  unconstitutional. 
The  United  States  is  asked  to  uphold  the  Panama  con- 
stitution in  accordance  with  the  treaty/' 

In  the  United  States,  acts  cf  legislation  by  the  exe- 
cutive power  have  always  hitherto  found  their  justifi- 
cation in  the  explicit  provisions  either  of  the  Constitu- 
tion or  of  an  Act  of  Congress.  It  has  been  remarked 
by  an  authoritative  writer  on  the  American  system 
of  government: 

"The  President  possesses  a  large  ordinance  power — 
that  is,  authority  to  supplement  statutes  by  rules  and 
regulations  covering  matters  of  detail  sometimes  of  very 
great  importance.  Among  other  things,  he  makes  rules 
for  the  army  and  navy,  the  patent  office,  the  customs,  in- 
ternal revenue,  consular,  and  civil  services.  Sometimes 
he  issues  these  rules  in  accordance  with  provisions  of  the 
statutes,  and  sometimes  under  his  general  executive 
power.  Many  of  the  army  regulations  he  promulgates 
as  commander  in  chief.  When  he  makes  rules  for  the 
civil  service,  he  acts  under  specific  provisions  of  the  civil 
service  law.  Thus,  under  his  power  to  remove,  to  see  to 
the  faithful  execution  of  the  laws,  and  to  issue  ordi- 
nances, the  President  enjoys  an  administrative  authority 
of  no  mean  dimensions."5 

While  this  is  undoubtedly  correct,  still,  as  to  mat- 
ters of  general  public  concern,  not  specifically  affecting 
a  branch  or  department  of  the  government  service,  the 

8  Charles  A.  Beard,  "American  Government  and  Polities'"  p. 
188. 


POWER   TO   LEGISLATION  133 

rule  still  prevails  that  the  President's  regulations  and 
orders  must  be  made  in  pursuance  of  authority  pre- 
viously given,  if  they  are  to  have  the  constraining  force 
of  law  and  be  so  recognized  by  the  courts. 

It  is  customary  that  the  determinations  of  the  ex- 
ecutive in  the  field  here  indicated,  that  is,  in  relation 
to  matters  of  general  public  concern,  not  restricted  to 
the  military  establishment  or  the  administrative  bu- 
reaus, but  of  such  a  character  that  they  may  impinge 
upon  the  rights  or  liberties  of  the  citizens,  should  be 
set  forth  in  the  form  of  presidential  proclamations. 
These  may  be  conveniently  divided  into  three  classes. 
First,  there  are  proclamations  intended  to  give  notice, 
information,  or  warning  to  all  persons  who  may  be 
concerned,  announcing  some  statute  or  treaty  or  some 
public  act  or  determination,  or  intended  action  of  the 
executive  department,  which  otherwise  might  not  be 
so  quickly  or  so  widely  promulgated.  For  instance,  it 
is  usual  in  this  manner  to  announce  the  admission  of 
a  new  state  into  the  Union,  the  ratification  of  a  treaty 
with  a  foreign  power  when  it  contains  provisions  which 
may  affect  the  dealings  of  private  persons,  the  inten- 
tion of  the  United  States  to  maintain  a  position  of 
neutrality  between  contending  nations,  or  the  intention 
of  the  government  to  enforce  the  neutrality  laws  with 
strictness.  In  this  category  also  we  should  include 
President  Wilson's  proclamation  of  December  26, 
1917,  announcing  that  he  thereby  took  possession  and 
assumed  control  of  the  transportation  systems  of  the « 
country. 

How  important  this  function  of  notification  may  be- 
come is  shown  in  the  case  of  the  executive  proclama- 


134  RELATION   OF   EXECUTIVE 

tion  of  the  selective  draft  act  of  1917.  The  statute  was 
assailed  in  the  courts  on  the  ground  that  it  unlawfully 
delegated  legislative  powers  to  the  President.  But 
Judge  Evans,  of  the  Circuit  Court  of  Appeals  for  the 
Sixth  Circuit  disposed  of  this  argument  in  the  follow- 
ing words : 

"A  careful  study  of  the  proclamation  of  the  President 
now  in  question  will  show  that,  while  the  future  making 
of  regulations  in  the  premises  was  foreshadowed,  none 
were  made,  nor  intended  to  be  made,  by  or  through  that 
document.  Its  manifest  purpose  was  to  give  the  people 
of  the  United  States  wide,  accurate,  and  official  infor- 
mation of  the  enactment  of  the  statutory  provision  now 
before  us,  and  which  is  set  out  in  full  therein.  The  act 
required  a  proclamation  for  the  purpose  of  giving  that 
character  of  notice  to  all  who  might  be  subject  to  the 
draft  provisions,  and  who  were  thus  notified  to  present 
themselves  at  the  proper  places  of  registration.  It  was 
not  intended  that  the  proclamation  should  itself  be  law, 
but  that  it  should  give  notice  of  the  provisions  of  a  most 
important  statute  which  Congress  had  just  enacted,  and 
which  required  prompt  enforcement.  It  is  sufficient, 
therefore,  to  say  that  its  purpose  was  not  to  add  to  the 
law,  nor  to  make  regulations,  but  to  give  to  the  public 
the  most  prompt  and  the  widest  possible  notice  of  certain 
provisions  of  a  new  law."6 

Generally,  proclamations  of  this  class  need  not  be 
authorized  or  required  by  the  Constitution  or  the  sta- 
tutes. In  some  cases  they  are  issued  in  accordance  with 
long-established  precedents,  as  in  the  instance  of  neu- 
trality proclamations.  But  for  the  most  part  they  are 
the  spontaneous  acts  of  the  President,  and  it  rests  in 
his  discretion  alone  to  determine  the  occasions  on  which 
they  shall  be  issued  and  the  subjects  to  which  they 
shall  relate.  But  it  is  to  be  noted  that  they  add  noth- 

6  Sugar  vs.  United  States,  252  Federal  Reporter,  74. 


POWER   TO    LEGISLATION  135 

ing  to  the  existing  body  of  law.  They  notify  or  warn, 
but  impose~"noTega!iy  enforceable  command.  For  this 
reason  we  may  also  place  in  this  group  proclamations 
which  are  merely  advisory  or  hortatory,  such  as  those 
annually  appointing  a  day  of  public  thanksgiving. 

The  second  class  of  presidential  orders  and  procla- 
mations will  include  those  specifically  authorized  by 
acts  of  Congress.  These  have  the  force  of  law,  but 
their  legally  compulsory  effect  is  not  derived  from  the 
will  of  the  President  but  from  the  authority  granted 
by  Congress.  They  generally  contain  provisions  for 
the  practical  execution  of  the  statutes,  or  they  are  con- 
cerned with  the  filling  in  of  details  as  to  which  the 
legislature  has  delegated  its  authority,  or  they  are 
prompted  by  the  occurrence  of  some  event  upon  which 
Congress  has  conditioned  the  taking  effect  of  a  statute, 
or  perhaps  its  suspension.  An  example  may  be  seen 
in  the  provisions  of  certain  of  the  tariff  acts  giving  the 
President  power  to  enforce  or  suspend  the  law  with 
reference  to  the  products  of  certain  foreign  countries, 
on  ascertaining  that  reciprocal  trade  concessions  are 
given  or  withheld,  as  the  case  may  be.  For  another 
illustration  we  may  recall  the  provision  in  the  income 
tax  acts  that  the  returns  made  by  taxpayers 

"shall  be  open  to  inspection  only  upon  the  order  of  the 
President,  under  rules  and  regulations  to  be  prescribed 
by  the  Secretary  of  the  Treasury  and  approved  by  the 
President." 

Under  this  authorization,  a  set  of  regulations  govern- 
ing the  conditions  under  which  such  returns  might  be 
treated  as  public  records  and  be  inspected  by  interested 
persons  was  drawn  by  the  Secretary,  approved  by  the 


136  RELATION   OF   EXECUTIVE 

President,  and  promulgated  by  the  latter,  over  his  sig- 
nature, and  under  the  title  of  an  "Executive  Order." 
Again,  numerous  rules  and  proclamations,  all  based  on 
similar  authorization,  are  made  with  reference  to  the 
public  lands,  their  sale  or  other  disposition,  the  open- 
ing and  demarcation  of  forest  reserves  and  national 
parks,  and  similar  matters;  to  the  extension  or  gov- 
ernment of  the  classified  civil  service;  and  to  a  very 
considerable  variety  of  other  subjects  which  it  is  not 
necessary  here  to  catalogue.  But  it  may  be  remarked 
in  passing  that  those  who  have  not  given  special  study 
to  the  subject  have  but  little  idea  of  the  frequency  and 
the  bulk  of  these  presidential  proclamations  or  the  im- 
portant part  they  play  in  the  actual  conduct  of  the 
public  business.  It  may  be  of  interest  to  note  that,  for 
a  period  covering  four  congresses,  from  1909  to  1917, 
the  presidential  proclamations  occupied  the  respectable 
total  of  592  of  the  large  pages  used  in  printing  the 
Statutes  at  Large.  In  this  division  also  must  be  in- 
cluded the  orders  and  proclamations  issued  from  the 
White  House  since  the  United  States  entered  upon  the 
Great  War  and  relating  to  the  effective  conduct  of  it, 
though  their  vast  importance  requires  their  separate 
consideration  on  a  later  page. 

The  third  class  of  executive  ordinances  is  that  which 
contains  matter  of  the  greatest  interest  for  students  of 
government  and  constitutional  practice.  It  includes 
those  which  are  put  forth  on  the  President's  own  ini- 
tiative, which  have  the  constraining  force  of  law,  and 
which  are  not  based  upon  any  direction  or  permission 
of  Congress,  but  either  upon  an  explicit  provision  of 
the  Constitution  or  upon  an  implication  drawn  from 


POWER   TO   LEGISLATION  137 

its  enumeration  of  the  President's  powers  and  duties. 
When,  for  example,  he  issues  his  call  for  an  extra  or 
special  session  of  Congress,  his  warrant  is  in  the  pro- 
vision of  the  Constitution  that 

"he  may  on  extraordinary  occasions  convene  both  houses 
or  either  of  them,  and  in  case  of  disagreement  between 
them  with  respect  to  the  time  of  adjournment,  he  may 
adjourn  them  to  such  time  as  he  shall  think  proper." 

A  proclamation  of  general  pardon  or  amnesty  (such 
as  followed  upon  the  decision  of  the  Supreme  Court 
that  the  courts  of  the  United  States  had  no  power  to 
grant  a  suspension  of  the  sentence  imposed  upon  a 
convicted  criminal  during  his  good  behavior)  is  clearly 
referable  to  the  President's  independent  and  constitu- 
tional authority  to  "grant  reprieves  and  pardons  for 
offenses  against  the  United  States."  It  is  not  neces- 
sary to  enlarge  upon  his  powers  as  commander  in  chief. 
But  after  this  we  enter  upon  a  debatable  ground,  where 
constitutional  authority  for  a  presidential  ordinance 
which  is  entirely  independent  of  any  concurrence  on 
the  part  of  Congress,  and  which  shall  yet  have  the 
force  of  law,  is  not  very  easily  discernible,  unless  it 
can  be  drawn  from  the  broad  but  indefinite  provision 
that  the  President  "shall  take  care  that  the  laws  be 
faithfully  executed." 

President  Lincoln's  emancipation  proclamation  of 
January  i,  1863,  was  stated  to  be  made 

"by  virtue  of  the  power  in  me  vested  as  commander  in 
chief  of  the  army  and  navy  of  the  United  States,  in  time 
of  actual  armed  rebellion  against  the  authority  and  gov- 
ernment of  the  United  States,  and  as  a  fit  and  necessary 
war  measure  for  suppressing  said  rebellion." 

But  on  the  other  hand,  his  proclamation  declaring  a 


I38  RELATION   OF   EXECUTIVE 

blockade  of  the  southern  ports  (April  19,  1861)  was 
issued  after  he  had  called  a  special  session  of  Con- 
gress, and  was  stated  to  be  founded  on  the  necessity  of 
preserving  the  public  peace,  suppressing  unlawful  acts 
of  insurrection,  and  protecting  the  lives  and  property 
of  law-abiding  citizens  "until  Congress  shall  have  as- 
sembled and  deliberated  on  said  unlawful  proceedings 
or  until  the  same  shall  have  ceased/'  It  must  be  re- 
membered that  this  action  was  taken  in  the  very  early 
stages  of  the  war.  The  inference  to  be  drawn  from 
the  language  of  the  proclamation  is  that  Lincoln's  con- 
sciousness was  not  yet  fully  aroused  to  the  vast  mag- 
nitude of  his  powers  as  commander  in  chief;  that  he 
was  still  looking  to  the  legislative  branch  of  the  gov- 
ernment either  to  deal  decisively  with  the  situation  by 
laws  or  to  clothe  him  definitely  with  authority  which 
he  was  not  confident  of  possessing;  that  he  felt  his  ac- 
tion to  be  provisional,  if  not  temporary;  but  that  he 
saw  clearly  that  the  crisis  demanded  his  vigorous  in- 
tervention as  chief  magistrate  of  the  nation,  since  a 
duty  to  "take  care  that  the  laws  be  faithfully  executed" 
certainly  connotes  an  obligation  to  see  that  they  are  not 
defied  and  annulled.  But  after  three  anxious  and  mo- 
mentous years  Lincoln's  point  of  view  had  changed. 
It  would  almost  appear  that,  by  that  time,  he  had 
come  to  regard  his  military  powers  as  adequate  not 
only  to  the  ordering  of  all  such  steps  as  were  necessary 
to  the  prosecution  of  the  war  or  conducive  to  its  suc- 
cessful issue,  but  also  to  the  adjustment  of  situations 
not  directly  involved  in  the  war,  but  which  the  war  had 
brought  about;  and,  as  a  corollary  to  this,  that  any 
pronouncement  of  Congress  on  such  matters  was  but 


POWER   TO   LEGISLATION  139 

little  more  than  advisory.  For  on  July  8,  1864,  he 
issued  a  proclamation  relating  to  the  reconstruction  of 
the  governments  of  the  southern  states,  in  which  he 
put  into  force  the  main  provisions  of  a  bill  which  had 
been  passed  by  Congress  on  the  same  subject,  but  to 
which  he  had  applied  the  "pocket  veto"  because  there 
were  some  features  of  it  to  which  he  could  not  agree. 

His  successor,  Andrew  Johnson,  notwithstanding 
his  long  and  stubborn  fight  with  Congress,  or  perhaps 
because  of  the  position  in  which  it  placed  him,  was 
meticulously  careful  that  such  action  as  he  took  on  his 
own  initiative  should  bear  the  warrant  of  constitu- 
tional authority  at  least  upon  its  face.  His  proclama- 
tions opening  most  of  the  southern  ports  to  commerce, 
granting  general  amnesty  and  pardons,  and  restoring 
the  operation  of  the  writ  of  habeas  corpus  were  prima 
facie  supported  by  the  powers  clearly  granted  to  the 
President.  But  the  proclamations  which  he  issued  in 
1865,  appointing  provisional  governors  for  the  states 
lately  in  insurrection,  as  a  part  of  his  reconstruction 
program,  were  explicitly  based  on  the  provision  of  the 
Constitution  that  the  United  States  shall  guarantee  to 
every  state  in  the  Union  a  republican  form  of  govern- 
ment, and  on  the  fact  that  the  President  is  made  by 
the  Constitution  the  commander  in  chief 

"as  well  as  chief  civil  executive  officer  of  the  United 
States,  and  is  bound  by  solemn  oath  faithfully  to  execute 
the  office  of  President  of  the  United  States,  and  to  take 
care  that  the  laws  be  faithfully  executed."  . 

President  Roosevelt,  as  has  been  earlier  stated,  had 
a  conviction  that  the  constitutional  provision  that  "the 
executive  power  shall  be  vested  in  a  President  of  the 


140  RELATION   OF   EXECUTIVE 

United  States  of  America"  vested  an  undefined  resi- 
duum of  power  in  the  chief  magistrate,  limited,  it  is 
true,  by  the  Constitution  and  the  laws  of  Congress  in 
certain  particulars,  but,  where  not  so  limited,  to  be  ex- 
ercised by  him  in  his  discretion  as  a  sort  of  general 
trustee  for  the  welfare  of  the  public.  Naturally,  there- 
fore, he  found  presidential  proclamations  and  execu- 
tive orders  a  convenient  means  of  carrying  out  some 
of  his  policies  without  asking  Congress  for  specific 
authority.  Thus,  he  tells  us : 

"In  a  number  of  instances  the  legality  of  executive  acts 
of  my  administration  was  brought  before  the  courts. 
They  were  uniformly  sustained.  For  example,  prior  to 
1907,  statutes  relating  to  the  disposition  of  coal  lands 
had  been  construed  as  fixing  the  flat  price  at  $10  to  $20 
per  acre.  The  result  was  that  valuable  coal  lands  were 
sold  for  wholly  inadequate  prices,  chiefly  to  big  corpora- 
tions. By  executive  order  the  coal  lands  were  withdrawn 
and  not  opened  for  entry  until  proper  classification  was 
placed  thereon  by  government  agents.  There  was  a  great 
clamor  that  I  was  usurping  legislative  power;  but  the 
acts  were  not  assailed  in  court  until  we  brought  suits  to 
set  aside  entries  made  by  persons  and  associations  to  ob- 
tain larger  areas  than  the  statutes  authorized.  This  po- 
sition was  opposed  on  the  ground  that  the  restrictions  im- 
posed were  illegal;  that  the  executive  orders  were  il- 
legal. The  Supreme  Court  sustained  the  government."7 

Since  the  fateful  sixth  of  April,  1917,  executive  or- 
ders, proclamations,  and  regulations  have  played  a 
part  in  the  government  of  our  people  and  in  the  con- 
duct of  their  daily  lives  absolutely  without  a  parallel  in 
our  previous  history.  They  have  closely  and  inti- 
mately touched  the  lives,  the  liberty,  the  property,  the 
food,  clothing,  comfort,  habits,  and  business  of  all  the 

7  Theodore  Roosevelt,  "Autobiography,"  p.  376. 


* 


POWER   TO   LEGISLATION  141 

citizens  of  the  United  States,  to  say  nothing  of  the 
millions  of  aliens  within  our  gates.  Such  is  the  in- 
evitable necessity  of  war.  The  phenomenon  is  one  to 
be  accepted  ungrudgingly  by  the  loyal  citizen.  To  the 
student  of  government  it  presents  a  problem  in  con- 
stitutional law  and  practice.  These  orders  and  regu- 
lations have  been  issued  either  directly  by  the  Presi- 
dent or  by  subordinate  officers  to  whom  he  has  dele- 
gated the  necessary  authority  in  the  premises.  In 
each  instance,  the  form  and  substance  of  the  rules  (if 
not  always  the  manner  of  their  execution)  have  been  , 
rested  upon  the  firm  foundation  of  the  law  of  the  land, 
as  distinguished  from  anything  like  the  mere  will  or 
command  of  the  executive.  That  is,  the  President's 
orders  and  proclamations  have  been  distinctly  author- 
ized either  by  the  Constitution  itself,  by  acts  of  Con- 
gress previously  existing,  or  by  new  laws  made  to  meet 
the  occasion.  But  having  said  this  much,  one  cannot 
fail  further  to  remark  upon  the  radical  difference  be- 
tween the  manner  in  which  the  authority  was  granted 
in  the  United  States  and  the  method  pursued  in  Eng- 
land. There,  as  already  pointed  out,  the  "Defense  of 
the  Realm  Consolidation  Act"  (1914)  granted  to  the 
council  (or  cabinet)  practically  unlimited  power  "to 
issue  regulations  for  securing  the  public  safety  and  the 
defense  of  the  realm" ;  and  this  was  done  in  one  brief 
sentence,  without  specification  of  details,  and  without 
limitation  of  time  except  as  found  in  the  words  "dur- 
ing the  continuance  of  the  present  war."  It  was  a 
placing  of  the  entire  authority  of  Parliament  in  com- 
mission, a  blanket  mortgage  upon  the  government  of 
the  country.  In  the  United  States,  on  the  other  hand, 


143  RELATION   OF   EXECUTIVE 

the  situation  has  been  dealt  with  in  a  manner  which  is 
perhaps  illustrative  of  the  entire  difference  between 
the  "cabinet"  or  "ministerial"  system  of  government 
and  the  "presidential"  system.     For  in  America  each 
separate  or  successive  exigency  growing  out  of  the  war 
or  involved  in  its  prosecution  has  been  made  the  sub- 
ject of  a  separate  act  of  Congress.     It  is  true  that 
some  of  these  statutes  have  granted  exceedingly  broad 
powers  to  the  President,  and  some  have  left  an  in- 
finity of  details  to  his  unqualified  discretion.     Bjjt-in 
each  instance  it  is  the  formal  enactment  of  the  legis- 
lative body  from  which  those  powers  are  derived  and 
by  which  the  exercise  of  that  discretion  is  justified. 
It  is  true  also  that  most  of  the  program  of  war  meas- 
ures was  dictated  by  the  President,  in  the  sense  that 
Congress  looked  to  him  for  guidance  and  stood  ready 
to  grant,  and  did  successively  grant,  whatever  powers 
he  asked  for,  upon  his  representing  the  necessity  either 
by  message  or  in  a  personal  address.    But  instead  of 
the  President  demanding,  or  Congress  conceding  at 
one  stroke,  an  unbounded  power  to  govern  the  country 
and  make  its  laws  by  executive  decree  during  the  war, 
it  was  the  understanding  and  practice  of  both  branches 
of  the  government  that  the  regulatory  power  of  the 
chief  magistrate  should  be  defined  and  advanced  step 
by  step,  so  that  there  might  be  specific  warrant  of  law 
for  his  dealing  with  each  separate  subject. 

This  was  so  from  the  initial  scene.  It  is  the  consti- 
tutional prerogative  of  Congress  to  declare  war,  and 
of  the  President  to  conduct  it.  It  was  from  Congress 
therefore  that  the  declaration  proceeded  of  a  state  of 
war  between  the  United  States  and  Germany,  April  6, 


POWER   TO    LEGISLATION  143 

1917,  and  between  the  United  States  and  Austria,  De- 
cember 7,  1917.  And  in  each  case  the  joint  resolution 
declaring  war  contained  a  provision  that 

"the  President  be,  and  he  is  hereby,  authorized  and  di- 
rected to  employ  the  entire  naval  and  military  forces  of 
the  United  States  and  the  resources  of  the  government  to 
carry  on  war  against" 

the  enemy.  But  it  is  precisely  at  this  point  that  the  di- 
vergence began  between  the  English  method  of  grant- 
ing war  powers  to  the  executive  and  that  followed  in 
the  United  States.  For  the  resolution,  as  it  was  origi- 
nally proposed  in  the  Senate,  authorized  and  directed 
the  President 

"to  take  immediate  steps  not  only  to  put  the  country  into 
a  thorough  state  of  defense,  but  also  to  exert  all  its 
power  and  employ  all  of  its  resources  to  carry  on  war 
against  the  Imperial  German  Government  and  to  bring 
the  conflict  to  a  successful  termination." 

But  the  committee  to  which  the  resolution  was  referred 
evidently  felt  that  the  concession  of  a  power  so  limit- 
less and  complete,  a  power  to  wield  all  the  power  and 
command  all  the  resources  of  the  nation,  meant  noth- 
ing less  than  the  virtual  abdication  of  the  Congress 
and  its  effective  exclusion  from  all  co-operation  in  de- 
termining upon  the  necessity  and  expedience  of  such 
measures  as  might  be  proposed.  The  committee  struck 
out  the  words  quoted  and  substituted  an  authorization 
and  direction  to  the  President  to  "employ  the  entire 
naval  and  military  forces  of  the  United  States  and  the 
resources  of  the  government"  to  carry  on  the  war. 
The  change  of  language  is  most  significant.  The  com- 
mittee's amendment  does  not  appear  to  have  been  de- 
bated in  the  Senate.  The  resolution  was  passed  as  re- 


144  RELATION   OF   EXECUTIVE 

ported,  and  was  sent  in  that  form  to  the  House  and 
there  concurred  in. 

The  President's  first  war  proclamation,  issued  on  the 
very  day  of  the  declaration  of  war,  related  to  the  con- 
duct of  alien  enemies  found  within  the  United  States 
and  the  various  restraints  necessary  to  be  imposed  upon 
their  freedom  of  action  and  the  places  where  they 
might  reside.  This  proclamation  established  regula- 
tions which  were  absolutely  compulsory  and  which 
would  be  backed,  wherever  necessary,  by  the  entire 
force  of  the  country.  Here  undoubtedly  the  Presi- 
dent made  laws;  but  he  acted  under  an  explicit  dele- 
gation of  authority.  For  an  act  of  Congress  dating 
back  to  1798,  and  now  contained  in  sections  4067  to 
4070  of  the  Revised  Statutes,  provides  that  when  the 
United  States  is  at  war  and  the  President  makes  pub- 
lic proclamation  of  the  fact,  he  is  authorized 

"by  his  proclamation  or  other  public  act,  to  direct  the 
conduct  to  be  observed  on  the  part  of  the  United  States 
towards  the  aliens  who  become  so  liable,  the  manner  and 
degree  of  the  restraint  to  which  they  shall  be  subject,  and 
in  what  cases,  and  upon  what  security  their  residence 
shall  be  permitted,  and  to  provide  for  the  removal  of 
those  who,  not  being  permitted  to  reside  within  the  United 
States,  refuse  or  neglect  to  depart  therefrom,  and  to 
establish  any  other  regulations  which  are  found  necessary 
in  the  premises  and  for  the  public  safety." 

And  the  President's  alien-enemy  proclamation  express- 
ly stated  that  he  acted  "under  and  by  virtue  of  the 
authority  vested  in  me  by  the  Constitution  of  the 
United  States  and  the  said  sections  of  the  Revised 
Statutes." 

It  will  be  unnecessary  to  scrutinize  each  of  the  im- 


POWER   TO    LEGISLATION  145 

portant  presidential  proclamations  bearing  on  the  war. 
But  a  survey  of  the  chief  acts  of  Congress  having  to 
do  with  the  matter  will  disclose  a  steady  and  deter- 
mined purpose  to  grant  to  the  executive  every  needful 
or  expedient  power,  but  to  grant  each  successive  in- 
stalment of  authority  in  unmistakable  terms,  so  that 
there  might  never  be  doubt  of  the  legal  sanction  of  the 
President's  decrees  or  regulations.  The  orders  for 
the  seizing  of  ships  in  American  ports  owned  by  Ger- 
mans were  based  upon  a  joint  resolution  of  Congress 

"authorizing  the  President  to  take  over  for  the  United 
States  the  possession  and  title  of  any  vessel  within  its 
jurisdiction,  which  at  the  time  of  coming  therein  was 
owned  in  whole  or  in  part  by  any  corporation,  citizen,  or 
subject  of  any  nation  with  which  the  United  States  may 
be  at  war." 

The  selective  draft  act  was  entitled  "An  act  to  author- 
ize the  President  to  increase  temporarily  the  military 
establishment  of  the  United  States,"  and  it  provided, 
among  other  things,  that  "the  President  be,  and  he  is 
hereby,  authorized  ...  to  draft  into  the  military  ser- 
vice of  the  United  States"  the  members  of  the  Na- 
tional Guard,  and  "to  raise  by  draft  as  herein  pro- 
vided, organize,  and  equip  an  additional  force  of  500,- 
ooo  enlisted  men,  or  such  part  or  parts  thereof  as  he 
may  at  any  time  deem  necessary" ;  and  "the  President 
is  further  authorized,  in  his  discretion  and  at  such 
time  as  he  may  determine,  to  raise  and  begin  the  train- 
ing of  an  additional  force  of  500,000  men."  The 
espionage  act  contains  a  typical  grant  of  authority  to 
be  exercised  upon  the  judgment  and  in  the  discretion 
of  the  executive.  It  provides : 

"Whenever  during  the  present  war  the  President  shall 


146  RELATION   OF   EXECUTIVE 

find  that  the  public  safety  shall  so  require,  and  shall  make 
proclamation  thereof,  it  shall  be  unlawful  to  export  from 
or  ship  from  or  take  out  of  the  United  States  to  any 
country  named  in  such  proclamation  any  article  or  arti- 
cles mentioned  in  such  proclamation,  except  at  such  time 
or  times,  and  under  such  regulations  and  orders,  and 
subject  to  such  limitations  and  exceptions,  as  the  Presi- 
dent shall  prescribe,  until  otherwise  ordered  by  the  Presi- 
dent or  by  Congress." 

The  same  purpose  and  the  same  method  are  appar- 
ent in  the  statute  which  has  perhaps  more  nearly 
touched  the  daily  lives  of  the  people  than  any  other, 
entitled  "An  act  to  provide  further  for  the  national  se- 
curity and  defense  by  encouraging  the  production,  con- 
serving the  supply,  and  controlling  the  distribution  of 
food  products  and  fuel."  This  act,  approved  August 
10,  1917,  provides  that  "the  President  is  authorized  to 
make  such  regulations  and  to  issue  such  orders  as  are 
essential  effectively  to  carry  out  the  provisions  of  this 
act/'  And  the  President's  proclamation  setting  in  mo- 
tion the  vast  machinery  of  the  food  and  fuel  adminis- 
trations (August  14,  1917)  was  explicitly  based  upon 
this  grant  of  authority.  So  it  was  also  with  the  statute 
to  regulate  and  punish  trading  with  the  enemy  and 
providing  a  custodian  of  alien  enemy  property;  and 
with  the  act  of  May  16,  1918,  "to  authorize  the  Presi- 
dent to  provide  housing  for  war  needs";  and  with  the 
so-called  "Overman  act,"  entitled  "An  act  authoriz- 
ing the  President  to  co-ordinate  or  consolidate  execu- 
tive bureaus,  agencies,  and  offices,  in  the  interest  of 
economy  and  the  more  efficient  concentration  of  the 
government." 

Finally,  attention  should  be  given  to  the  very  im- 
portant proclamation  of  the  President  taking  over  the 


POWER   TO    LEGISLATION  14? 

railway  systems  of  the  country,  because  it  is  evident 
that  it  was  drawn  with  very  great  care,  and  because  it 
is  very  explicit  as  to  the  source  of  his  authority.  This 
proclamation,  dated  December  26,  1917,  begins  with  a 
recital  of  the  declaration  of  war  as  having  been  made 
by  "the  Congress  of  the  United  States  in  the  exercise 
of  the  constitutional  authority  vested  in  them."  Next 
it  repeats  the  provision  of  an  act  of  August  29,  1916, 
to  the  effect  that 

"the  President  in  time  of  war  is  empowered,  through  the 
Secretary  of  War,  to  take  possession  and  assume  control 
of  any  system  or  systems  of  transportation,  or  any  part 
thereof,  and  to  utilize  the  same,  to  the  exclusion  so  far 
as  may  be  necessary  of  all  other  traffic  thereon,  for  the 
transfer  or  transportation  of  troops,  war  material  and 
equipment,  or  for  such  other  purposes  connected  with 
the  emergency  as  may  be  needful  or  desirable/' 

The  proclamation  continues : 

"And  whereas  it  has  now  become  necessary  in  the 
national  defense  to  take  possession  and  assume  control 
of  certain  systems  of  transportation  and  to  utilize  the 
same,  to  the  exclusion  so  far  as  may  be  necessary  of 
other  than  war  traffic  thereon,  for  the  transportation  of 
troops,  war  material  and  equipment  therefor,  and  for 
other  needful  and  desirable  purposes  connected  with  the 
prosecution  of  the  war;  Now  therefore  I,  Woodrow 
Wilson,  President  of  the  United  States,  under  and  by 
virtue  of  the  powers  vested  in  me  by  the  foregoing  reso- 
lutions and  statute,  and  by  virtue  of  all  other  powers 
thereto  me  enabling,  do  hereby,  through  Newton  D. 
Baker,  Secretary  of  War,  take  possession  and  assume 
control  at  twelve  o'clock  noon  on  the  28th  day  of  De- 
cember, 1917,  of  each  and  every  system  .of  transporta- 
tion, and  the  appurtenances  thereof,  located  wholly  or  in 
part  within  the  boundaries  of  the  continental  United 
States,  and  consisting  of  railroads,"  etc. 

Nevertheless  a  United  States  District  Court,  having 


148  RELATION   OF   EXECUTIVE 

to  consider  the  effect  of  this  proclamation  in  a  suit  be- 
fore it,  to  which  one  of  the  commandeered  roads  was 
a  party,8  has  said : 

"The  proposition  is  so  well  established  as  to  be  ele- 
mentary that  Congress  may  authorize  heads  of  depart- 
ments or  other  officers  to  make  regulations  within  cer- 
tain limits,  and,  when  made  within  those  limits,  such 
regulations  have  the  force  and  effect  of  law,  and  may  be 
enforced  as  such;  but  it  has  often  been  held  that  the 
delegation  of  authority  to  make  regulatory  orders  gives 
no  power  to  add  to,  take  from,  or  modify  the  limitations 
prescribed  by  Congress/' 

Now  the  act  of  August  29,  1916,  authorizing  the 
President  to  take  possession  of  the  railroads  through 
the  Secretary  of  War, 

"does  not  give  authority  to  the  President  to  make  or 
promulgate  a  proclamation  of  any  character.  No  one, 
however,  could  or  would  contend  that  he  had  not  abun- 
dant authority  to  issue  such  documents  whenever  he 
thought  it  proper  to  give  notice  or  information  to  the 
public.  But  such  papers  cannot  have  any  effect  as  laws, 
in  the  absence  of  express  constitutional  or  congressional 
authorization/' 

Consequently  the  court  felt  constrained  to  hold  that 
the  proclamation  in  question,  in  so  far  as  it  appointed 
the  Secretary  of  the  Treasury  to  be  "director  general 
of  railroads"  and  provided  other  details  in  regard  to 
the  control  and  operation  of  the  roads,  has  no  force 
as  law,  that  is,  it  cannot  affect  or  modify  the  legal 
rights  or  obligations  of  any  person  or  corporation. 

8  Muir  vs.  Louisville  &  Nashville  Railroad  Company,  247  Fed- 
eral Reporter,  888. 


VII 

EXECUTIVE  POWER  IN  THE  STATES 

The  governments  of  the  states  were  moulded  into 
their  first  form  upon  the  same  theory  of  the  relations 
between  the  executive  and  the  legislature  as  that  which 
came  to  prevail  in  the  formation  of  the  federal  Con- 
stitution and  the  early  operation  of  the  government 
under  it.  Indeed,  the  general  acceptance  of  this  theory 
among  the  men  of  leading  and  influence  in  the  states 
may  be  said  to  have  predetermined  its  destiny  as  a 
guiding  principle  in  the  working  of  the  national  gov- 
ernment. The  constitutions  adopted  in  the  Revolu- 
tionary period  recognized  the  importance  of  separating 
the  three  main  departments  of  government  and  made 
suitable  provision  to  that  end,  and  none  more  clearly 
and  explicitly  than  that  of  Massachusetts,  in  1780. 
But  the  purpose,  declared  with  equal  explicitness,  was 
"that  this  may  be  a  government  of  laws  and  not  of 
men/'  That  was  the  idea  which  lay  back  of  all  the 
precautions  taken  by  the  early  constitution  makers — 
the  fear  of  the  tyrannical  exercise  of  power  by  indi- 
vidual men  in  office.  Very  close  to  them  were  the 
memories  of  the  almost  unlimited  powers  vested  in 
some  of  the  colonial  governors  and  their  arbitrary  and 
high-handed  exercise.  Nor  was  it  easy  to  exorcise  the 
bogie  of  that  stubborn  and  meddling  monarch  George 
III.  It  is  no  wonder  that  the  men  of  that  day  should 


ISO  RELATION   OF   EXECUTIVE 

have  had  a  profound  distrust  of  executive  power  and 
serious  apprehensions  as  to  the  possibility  of  its  abuse. 
To  their  minds  it  was  clear  that  a  chief  executive  offi- 
cer was  needed,  and  that  the  discharge  of  purely  ad- 
ministrative functions  by  the  legislative  body  was 
neither  suitable  nor  safe.  Yet  their  conception  of  the 
legislature  as  the  supreme  power  in  the  state,  and  as 
the  possessor  of  such  "sovereignty"  as  might  be  con- 
ceded to  exist  among  a  free  people,  was  equally  fixed. 
Hence  it  followed  that  the  law-making  department  was 
to  be  predominant.  The  governor  was  to  be  strictly 
confined  to  the  somewhat  narrow  prerogatives  which 
were  somewhat  grudgingly  granted  to  him.  He  was 
not  to  be  the  ruler,  the  leader,  or  the  dictator  of  poli- 
cies or  of  laws.  It  will  not  be  forgotten  that  several 
of  the  early  state  constitutions  even  provided  for  the 
choosing  of  the  governor  by  the  legislature. 

So  much  for  theory.  But  the  actual  evolution  of  the 
state  governments  has  shown  an  endeavor  on  the  part 
of  the  executive  office  to  extricate  itself  from  some  of 
the  restraints  placed  upon  it,  and  a  tendency  on  the 
part  of  the  people  to  retrieve  from  the  field  of  legisla- 
tive exercise  some  of  the  functions  and  duties  which 
are  properly  executive  in  their  nature  and  to  bestow 
them  where  they  rightfully  belong.  Perhaps  this  does 
not  indicate  a  changing  belief  as  to  the  relative  im- 
portance of  the  executive  and  legislative  departments, 
nor  any  deliberate  purpose  to  shift  the  leadership  from 
the  one  to  the  other.  Rather  it  resulted  from  a  grad- 
ual but  accelerating  conviction  in  the  minds  of  the 
people  that  the  functioning  of  their  state  legislatures 
was  becoming — had  indeed  become — grossly  unsatis- 


POWER   TO   LEGISLATION  151 

factory  and  disappointing.  From  the  middle  of  the 
nineteenth  century  there  became  apparent  a  remark- 
ably wide-spread  distrust  of  the  legislatures.  Their 
powers  had  been  abused;  they  had  failed  to  register 
the  real  desires  of  the  people;  often  they  had  thwarted 
the  popular  will;  some  of  their  enactments  were  im- 
practicable, others  downright  foolish;  they  were  not 
free  from  the  taint  of  corruption;  legislators  were 
purchasable ;  it  was  only  too  conspicuously  evident  that 
at  times  they  were  unworthily  dominated  by  unscrupu- 
lous business  interests.  Hence  there  came  an  era 
chiefly  distinguished  for  the  successive  application  of 
curbs  upon  the  powers  of  the  legislatures.  From  time 
to  time,  as  the  people  had  opportunity  to  amend  or 
revise  their  constitutions,  they  sought  to  delimit  more 
sharply  the  permissible  activity  of  the  legislative  body. 
But  practically  all  these  reforms  were  negative  rather 
than  positive  in  character.  That  is,  the  effort  was  not 
so  much  to  improve  legislative  doings  or  promote  the 
making  of  good  laws  as  to  minimize  the  legislature's 
power  for  harm. 

Thus  there  began  to  appear  in  the  constitutions  pro- 
visions relating  to  legislative  procedure,  as,  that  each 
bill  shall  relate  to  but  one  single  subject,  which  shall 
be  plainly  expressed  in  the  title,  and  that  laws  shall 
not  be  amended  nor  their  provisions  extended  by  mere 
reference,  but  that  such  modifications  or  extensions 
must  be  effected  by  re-enactment  at  length.  The  gen- 
eral prohibitions  against  local  and  special  legislation 
having  proved  ineffectual,  the  constitutions  began  to 
be  encumbered  with  a  long  list  of  subjects,  generally 
of  .this  character,  as  to  which  the  legislature  is  forbid- 


152  RELATION   OF   EXECUTIVE 

den  to  act  at  all.  The  sessions  of  the  legislative  body 
were  made  shorter  and  less  frequent.  That  is,  bien- 
nial sessions  were  generally  substituted  for  annual  as- 
semblies, and  the  number  of  days  during  which  the 
session  might  continue  was  cut  down  to  narrow  limits. 
This  drew  forth  from  one  observer  the  remark  that 

"for  a  people  claiming  pre-eminence  in  the  sphere  of 
popular  government,  it  seems  hardly  creditable  that  in 
their  seeming  despair  of  a  cure  for  the  chronic  evils  of 
legislation,  they  should  be  able  to  mitigate  them  only  by 
making  them  intermittent." 

I  Again  the  practice  began  and  has  continued  of  in- 
corporating into  every  new  constitution  a  host  of  pro- 
visions which  are  purely  of  a  statutory  nature  and 
therefore  have  no  fitting  place  in  the  fundamental  law. 
This  practice  of  overloading  the  constitutions  has 
worked  infinite  harm,  since  it  has  tended  to  confuse  the 
real  distinction  between  true  and  essential  principles 
of  government  and  merely  ephemeral  pieces  of  legisla- 
tion, and  has  distinctly  lowered  the  respect  of  the  peo- 
ple for  their  organic  laws.  But  it  seemed  the  only  way 
in  which  certain  subjects  of  high  importance  could  be 
removed  from  the  grasp  of  the  legislature;  and  the 
utter  lack  of  public  confidence  in  such  bodies  could  not 
be  more  strikingly  manifested  than  in  the  adoption  of 
this  otherwise  indefensible  method  of  securing  a  cer- 
tain measure  of  continuity  and  immunity  from  med- 
dling for  laws  considered  to  be  of  especial  importance 
in  the  policy  of  the  state.  ]  Finally,  the  popular  initia- 
tive and  the  compulsory  referendum  in  legislation  are 
advocated  by  their  friends  almost  entirely  on  the 
ground  that  they  give  the  people  an  additional  means 


POWER   TO    LEGISLATION  153 

of  control  over  an  unresponsive,  extravagant,  faithless, 
or  corrupt  legislature. 

In  the  federal  government  we  have  seen  the  theory 
of  the  supremacy  of  the  legislative  branch  gradually  I 
give  way  to  the  leadership  of  the  executive.  Whatever 
else  may  be  said  of  this  change,  it  cannot  be  denied  that 
it  has  resulted  in  the  development  of  a  strong,  efficient, 
and  well  co-ordinated  government.  But  the  process  in  /  - 
the  states  has  been  very  different.  The  curtailment  of 
the  powers  of  the  legislatures  and  the  withdrawal  from 
them  of  the  respect  and  confidence  of  the  people  have 
not  been  compensated  by  any  corresponding  enlarge- 
ment of  the  powers  and  influence  of  the  governors. 
Rather,  the  period  of  which  we  are  speaking  has  been 
described  as  one  of  "decentralization  and  disintegration 
of  the  executive."  And  the  consequence  is  that  the 
state  governments  today  constitute  the  weak  link  in 
our  chain  of  political  institutions. 

Since  approximately  the  time  of  the  Civil  War,  the 
legislative  output  of  the  states  has  taken  on  a  differ-       , 
ent  complexion  and  their  administrative  business  has 
enormously  increased.     This  has  been  due  to  the  in-     ]aTrriij/l  , 
troduction  into  daily  life  of  the  splendid  acquisitions 
of  science,  to  the  steadily  increasing  complexity  of  so-       /    \ 
oaTan3  industrial  conditions,  and  to  the  rise  of  that 
new  democracy  which  grounds  its  teachings  upon  hu- 
man brotherhood  and  finds  its  best  expression  in  the 
voice  of  an  awakened  public  conscience.    In  the  inter- 
ests of  the  public  welfare  and  for  the  protection  of  the 
individual,  no  less  than  for  the  encouragement  of  en- 
terprise and  the  enrichment  of  the  life  of  the  com- 
munity through  an  increase  of  the  prosperity  of  the 


154  RELATION    OF   EXECUTIVE 

whole,  the  states  have  had  to  turn  their  attention,  in 
both  their  legislative  and  administrative  departments, 
to  the  railroads,  telegraphs,  and  telephone  systems,  and 
the  various  other  public  utilities  which  have  become  in- 
dispensable ministrants  to  the  public  convenience  and 
comfort;  to  the  systematic  enlargement  and  improve- 
ment of  the  methods  and  means  of  public  education; 
to  the  regulation  of  banking  and  the  business  of  in- 
surance; to  the  conservation  and  beneficial  use  of  nat- 
ural resources  and  the  encouragement  of  agriculture; 
to  modern  theories  and  practices  in  the  matter  of  pub- 
lic sanitation;  to  new  and  vital  ideas  in  the  domain  of 
organized  charities  and  of  preventive  and  correctional 
police;  to  the  reform  and  reorganization  of  the  muni- 
cipal governments;  and  to  the  regulation  of  industry 
and  commerce,  for  the  prevention  of  injustice  and  op- 
pression and  for  ameliorating  the  lot  of  the  vast  army 
of  workers. 

All  this  work  required  a  substructure  of  legislation. 
But  after  legislation  comes  administration.  General 
rules,  principles,  and  policies  having  been  laid  down 
in  the  laws,  the  working  out  of  their  details  and  their 
application  in  actual  practice  to  an  infinite  complexity 
of  cases  is  the  task  of  the  administrative  department. 
But  (speaking  necessarily  in  the  most  general  terms) 
the  entry  of  the  state  into  these  new  fields  of  regula- 
tion and  control  has  not  tended  either  to  strengthen 
the  influence  of  the  governor  or  materially  to  increase 
the  sphere  of  his  official  activity.  Almost  universally 
the  disposition  has  been  to  commit  the  administration 
of  all  these  various  new  departments  to  new  executive 
officers,  popularly  elected,  and  therefore  owing  no  de- 


POWER   TO    LEGISLATION  155 

ference  or  allegiance  to  the  governor  of  the  state  other 
than  such  as  may  spring  from  considerations  of  party 
interest,  or  else  to  boards  and  commissions  specially 
created  for  the  purpose,  and  whose  members,  if  in  the 
first  instance  they  owe  their  appointment  to  the  gover- 
nor, are  not  invariably  subject  to  his  power  of  re- 
moval, and  are  only  in  a  slight  degree  responsible  to 
him  or  subject  to  his  control.  In  several  of  the  states, 
there  are  now  more  than  one  hundred  such  separate 
executive  officers,  boards,  commissions,  or  other  ad- 
ministrative agencies.  It  has  not  inaptly  been  termed 
an  age  of  "government  by  commissions."  The  result 
is  that  the  governor  of  a  state  is  not  vested  with  the 
power  of  control  and  the  corresponding  responsibility 
which  clearly  belong  to  the  head  of  the  executive  de- 
partment. He  is  the  chief  magistrate  only  in  name 
and  appearance.  To  a  very  limited  extent  he  is  an  ex- 
ecutive officer ;  to  an  infinitely  greater  extent  he  is  only 
a  political  officer. 

The  contrast  between  the  growth  of  executive  power 
in  the  federal  government  and  its  decline  in  the  state 
governments  has  been  well  stated  in  the  following 
passage  : 

"Originally  occupying  about  the  same  relative  position 
[as  the  President]  the  governor  has  been  stripped  of  his 
administrative  power  and  confined  to  the  exercise  of  po- 
litical powers,  while  the  President  has  been  gaining  more 
and  more  administrative  power,  until  at  the  present  time 
he  makes  or  unmakes  the  administration  of  the  United 
States.  It  has  become  impossible  for  the  governor  to 
become  the  head  of  the  commonwealth  administration 
because  the  people  have  decided  that  he  shall  be  in  the 
main  a  political  officer.  They  have  lessened  his  power 
of  appointment.  They  have  almost  destroyed  his  power 


156  RELATION   OF   EXECUTIVE 

of  removal.  He  has  been  unable  to  develop  any  power 
of  direction.  The  governor's  office  has  been  deprived  of 
all  means  of  administrative  development."1 

Still  it  is  an  undeniable  fact  that  the  people  of  the 
1  average  state  do  look  to  the  governor  as  their  leader. 
They  feel  that  he  is  the  one  person  who  most  truly 
represents  the  embodied  power  and  dignity  of  the  state 
and  the  collective  will  of  its  people.  However  un- 
justly, he  is  the  one  who  is  held  responsible  for  the 
government  of  the  state  during  his  administration.  It 
may  be  that  there  survives  some  ancient  veneration  for 
the  office  of  the  governor,  some  inarticulate  memory 
of  great  men  who  guided  the  destinies  of  the  state  in 
past  days.  It  may  be  because  the  governorship  is  the 
chief  political  prize  within  the  state.  It  is  perhaps 
more  likely  because  such  powers  and  prerogatives  as 
still  remain  to  the  governor  are  his  exclusively,  to  be 
shared  with  no  one  else,  so  that  the  light  which  plays 
upon  his  official  doings  is  f ocussed  upon  the  individual, 
instead  of  being  refracted  from  the  many  facets  of  a 
composite  executive.  But  whatever  the  cause,  the  fact 
remains  that  the  governor  is  still  the  most  conspicu- 
ous figure  in  the  state  administration,  and  if  his  pow- 
ers were  sufficiently  strengthened,  and  supposing  him 
to  possess  an  adequate  natural  endowment  and  ex- 
perience, the  one  best  fitted  both  to  represent  and  to 
lead  the  people.  To  an  appreciable  extent,  a  state 
governor  is  forced  into  that  very  position.  It  is  his 
constitutional  duty  to  address  the  legislature  (in  per- 
son or  by  message)  upon  the  activities,  the  policies, 

1  Goodnow,  "Comparative  Administrative  Law,"  p.  81,  as  quoted 
in  Finley's  "The  American  Executive,"  p.  46. 


POWER   TO    LEGISLATION  157 

and  the  needs  of  the  state,  and  to  recommend  the  en- 
actment of  such  laws  as  he  deems  salutary  or  expe- 
dient. Thereby  he  assumes  a  distinct  responsibility 
towards  the  public,  but  it  is  a  responsibility  which  is 
unjustly  laid  upon  his  shoulders  if  he  is  unable  to 
carry  his  plans  into  effect.  His  may  be  a  "voice  crying 
in  the  wilderness/'  but  he  is  blamed  if  the  hosts  do 
not  assemble  in  answer  to  his  call. 

Signs  are  not  wanting,  however,  of  a  popular  dis- 
position to  confide  more  to  the  governor,  while  exact- 
ing more  from  him.  A  publicist  of  distinction,  re- 
cently the  governor  of  his  state,  has  said : 

"The  people  look  to  the  governor,  and  not  to  the  in- 
dividual members  of  the  legislature,  for  leadership  and 
for  the  passage  of  such  laws  as  the  economic,  political, 
and  social  condition  of  the  state  may  demand,  and  judge 
his  administration  by  his  success  or  failure  in  securing 
the  enactment  of  necessary  laws.  There  is  profound  dis-  j 
trust  by  the  people  of  the  United  States  of  their  legisla- 
tures and  serious  suspicion  as  to  the  source  of  legisla- 
tion, and  this  distrust  and  suspicion  are  intensified  by  the 
dark-lantern  methods  which  prevail,  and  the  secret,  in- 
visible government  by  which  these  bodies  are  so  often 
dominated.  The  people  of  the  United  States  want  their 
governors  to  be  leaders  in  legislation,  for  they  alone  rep- 
resent the  entire  state,  and  they  favor  such  constitutional 
revision  as  will  make  their  leadership  secure  and  ef- 
fective."2 

It  is  true  that  some  of  the  state  governors,  like 
Theodore  Roosevelt  in  New  York,  have  assumed  and 
exercised  the  functions  of  leadership  with  notable  en- 
ergy and  often  with  no  less  remarkable  results.  But 
this  has  been  due  to  the  dynamic  character  of  the  man 

2  Hon.  Emmet  O'Neal  in  Virginia  Law  Register,  December, 
1917,  p.  166. 


158  RELATION   OF   EXECUTIVE 

himself,  rather  than  to  any  peculiarity  in  the  constitu- 
tions of  those  states.  Such  governors  have  simply  laid 
hold  upon  the  possibilities  of  the  situation.  But  their 
conduct  has  been  exceptional,  not  typical.  As  explain- 
ing how  an  executive  of  such  force  of  character  may 
make  his  personality  felt,  rather  than  as  delineating  any 
common  or  general  process  of  executive  leadership  in 
government,  attention  may  well  be  given  to  the  fol- 
lowing passage  from  an  important  study  of  the  state 
governments,  quite  recently  published : 

"Since  the  governor  is  armed  with  the  appointing  and 
veto  powers,  his  recommendations  are  bound  to  be  con- 
sidered regardless  of  his  party  affiliation.  If  he  is  dis- 
posed to  make  a  vigorous  use  of  these  powers  in  order 
to  promote  a  legislative  program  of  his  own,  he  becomes 
a  more  influential  legislator  than  any  single  member  of 
the  legislature  itself,  not  even  excepting  the  speaker. 
Public  recognition  of  this  fact  has  caused  the  governor  to 
accept  a  responsibility  which  the  framers  of  the  original 
state  constitutions  would  have  regarded  as  unconstitu- 
tional, for  the  action  of  the  legislature  upon  the  principal 
public  issues.  Executive  usurpation  of  legislative  pre- 
rogatives has  been  sanctioned  by  public  opinion,  because 
the  governor  has  tended  to  stand  for  the  interests  of  the 
state  as  a  whole,  being  elected  in  the  state  at  large,  whilst 
the  members  of  the  legislature  have  only  too  often  stood 
for  local  and  private  interests  within  their  several  dis- 
tricts/'3 

There  seems  to  be  a  general  conviction  that  the  time 
has  come  to  rescue  the  state  governments  from  this  un- 
satisfactory condition  and  to  make  them  as  strong  and 
efficient  in  their  proper  sphere  as  the  federal  govern- 
ment has  become.  But  apparently  the  people  despair 
of  reforming  their  legislatures.  Proposals  in  that  be- 

3  Arthur  N.  Holcombe,  "State  Government  in  the  United 
States,"  p.  268. 


POWER   TO   LEGISLATION  159 

half  are  almost  invariably  confined  to  the  idea  that 
the  output  of  laws  might  be  improved  if  the  number 
of  members  of  the  legislature  were  greatly  reduced, 
and  perhaps  that  the  legislative  body  should  be  reor- 
ganized as  a  single  small  chamber.  On  the  other  hand, 
public  opinion  has  strongly  turned  to  the  executive  de- 
partment as  the  field  in  which  beneficial  change  may 
most  readily  be  brought  about,  with  a  helpful  reaction 
upon  the  entire  system  of  state  administration.  To 
enlarge  the  powers  of  the  governor,  to  strengthen  his 
influence,  to  invest  him  with  the  right  to  initiate,  direct, 
and  control  legislation  and  with  authority  over  prac- 
tically all  the  other  state  officers,  and  so  to  place  him 
frankly  in  a  position  where  he  may  assume  the  leader- 
ship of  the  state,  charging  him  with  a  corresponding 
responsibility — this  is  the  plan  of  reform  most  widely 
and  vigorously  advocated.  The  discussion  of  the  sub- 
ject must  first  of  all  recognize  the  fact  that  the  prob- 
lem of  the  relation  between  the  executive  and  legisla- 
tive departments  is  not  at  all  the  same  in  the  states  as  it 
is  in  the  United  States.  It  grows  out  of  a  different  set 
of  conditions,  and  it  is  by  no  means  certain  that  it 
could  or  should  be  solved  in  the  same  way.  The  gov- 
ernmental machinery  of  a  state  is  different  from  that 
of  the  national  government.  Besides,  presidential  as-\  ? 
pirations  to  leadership  and  control  have  not  been 
avowedly  based  on  any  charge  that  Congress  had  be- 
come incompetent  or  corrupt,  while,  in  the  states,  it  is 
the  decadence  of  the  legislatures  which  is  chiefly  re-  / 
sponsible  for  the  hope  that  in  the  ascendancy  of  the 
governor  may  be  found  the  way  of  salvation. 

First,  the  proposal  to  give  the  governor  a  direct 


160  RELATION   OF   EXECUTIVE 

right  of  initiative  in  legislation  grows  naturally  out  of 
his  constitutional  authority  and  duty  to  recommend 
the  enactment  of  laws  upon  such  subjects  as  he  deems 
important.  The  annual  and  other  messages  of  the 
state  governors  do,  it  is  true,  receive  considerable  at- 
tention, and  it  may  be  supposed  that  they  exercise  a 
limited  influence  upon  the  course  of  legislation.  But 
it  is  not  invariably  the  case  that  bills  are  introduced  in 
accordance  with  their  suggestions  or  debate  excited, 
and  at  the  best  the  message  can  only  outline  a  general 
policy  without  attempting  to  mould  details.  The  gov- 
ernor's duty  to  recommend  legislation  may  plausibly 
be  said  to  imply  a  further  duty  to  use  every  proper 
means  to  see  that  his  recommendations  bear  fruit.  •  But 
no  such  means  are  constitutionally  at  his  command. 
He  can  only  resort  to  personal  urgency  or  political 
pressure.  It  is  no  matter  of  surprise,  then,  that  meas- 
ures which  the  governor  himself  considers  of  the  ut- 
most importance,  or  which  he  is  most  strongly  pledged 
to  advocate,  sometimes  receive  but  lukewarm  consid- 
eration at  the  hands  of  the  legislature,  and  if  they  are 
not  secretly  done  to  death  by  sinister  influences,  are 
committed  to  unbroken  repose  in  the  files  of  the  com- 
mittee room. 

The  remedy  proposed  is  to  give  the  governor  power 
to  suggest  amendments  to  any  bills  which  are  presented 
to  him  for  his  signature,  and  also  the  right  to  introduce 
his  own  drafts  of  bills  directly  into  either  house  of  the 
legislature,  and  there  to  explain  them  and  argue  for 
their  passage  either  in  person  or  through  the  heads  of 
executive  departments.  What  might  be  expected  from 
such  a  change  of  methods  has  been  thus  expounded  by 


POWER   TO    LEGISLATION  161 

a  writer  whose  own  experience  as  the  governor  of  his 
state  entitles  him  to  speak  with  authority: 

"With  the  power  of  amendment,  which  should  not  be 
overcome  except  by  a  two-thirds  vote,  with  authority  to 
submit  his  recommendations  either  in  person  or  by  writ- 
ten message,  and  to  present  these  recommendations  in  the 
form  of  bills,  and  to  defend  them  on  the  floor  of  the 
legislature  in  open  debate,  such  bills  to  enjoy  precedence 
on  the  calendar  of  both  houses  over  all  other  bills  except 
appropriations,  the  governor  would  assume  that  position 
of  leadership  which  would  guarantee  efficient  and  vigor- 
ous administration.  If  bad  laws  are  passed,  the  gover- 
nor is  generally  held  responsible  at  the  bar  of  public 
opinion,  and  hence  he  should  be  armed  with  power  to 
make  his  leadership  effective,  as  the  responsible  chief  of 
state.  This  increase  of  the  power  of  the  executive  would 
tend  to  better  and  more  responsible  legislation  and  make 
the  governor  directly  responsible  for  the  laws  enacted 
during  his  administration."4 

It  has  even  been  suggested  that  the  best  results  might 
be  obtained  by  giving  to  the  executive  department  a 
constitutional  monopoly  of  the  initiative  in  legislation. 
Certainly  this  goes  too  far.  At  the  same  time  it  is  an 
incontrovertible  fact  that  the  business  of  a  legislative 
session  is  directed  and  controlled  either  by  a  leader  or 
band  of  leaders  within  the  house,  by  a  political  boss 
or  bosses,  by  organized  outside  influences,  or  by  a 
combination  among  some  or  all  of  these  sources  of 
power.  Nothing  is  accomplished  except  by  personal 
initiative  and  personal  influence.  The  mass  of  legisla- 
tors must  either  be  pushed  or  led. 

"It  is  a  cardinal  fact,  to  be  recognized  in  the  construc- 
tion of  legislative  bodies,  that  the  ultimate  and  all-im- 
portant duty  and  function  of  the  people,  and  even  of 

4  Hon.  Emmet  O'Neal,  in  the  Virginia  Law  Register,  Decem- 
ber, 1917,  p.  166. 


i62  RELATION   OF   EXECUTIVE 

their  representative  bodies,  must  'be  simply  to  assent  and 
dissent.  To  a  single  leader  or  group  of  leaders  must  fall 
the  responsibility  of  initiative,  of  interpreting,  crystalliz- 
ng,  and  formulating  the  vague  and  dormant  thoughts  of 
the  people,  and  submitting  their  formulations  to  them  for 
correction  and  adjustment.  We  must  set  up  in  our  legis- 
lative bodies  the  definite  machinery  of  initiative  and  as- 
sent. If  we  fail  to  do  so,  the  actual  management  of  legis- 
lation will  continue  to  lie  outside  the  control  of  the  peo- 
ple, in  the  hands  of  unofficial  and  irresponsible  leaders. 
For  leaders  there  must  be."5 

Even  without  giving  the  executive  a  monopoly  of 
the  initiative,  there  is  ground  to  believe  that  the  qual- 
ity of  the  legislative  output  would  be  greatly  improved 
if  the  governor  and  his  chief  aides  could  frame  and  in- 
troduce their  own  bills.  Such  measures  could  not  fail 
to  carry  a  special  prestige,  and  it  is  altogether  probable 
that  they  would  be  subjected  to  more  careful  scrutiny 
and  more  earnest  debate,  and,  what  is  most  important, 
both  their  advocates  and  their  opponents  would  be 
forced  to  come  out  into  the  light  of  day.  It  is  beyond 
question  that  one  of  the  results  would  be  a  much 
greater  measure  of  precision,  definiteness,  and  accur- 
acy both  in  the  processes  of  legislation  and  in  the  lan- 
guage of  the  statutes.  If  anyone  is  insensible  to  the 
need  of  improvement  in  these  respects,  let  him  ponder 
the  following  pieces  of  evidence.  Governor  Hodges 
of  Kansas  is  reported  to  have  stated  that,  during  his 
incumbency  of  that  office,  although  his  executive  clerk 
and  the  attorney  general  did  their  best  to  scrutinize 
all  the  bills  before  the  legislature,  two  instances  were 
found  in  which  identically  the  same  law  had  been  en- 

5  H.  S.  Gilbertson,  in  the  National  Municipal  Review,  Novem- 
ber, 1917,  p.  669. 


POWER   TO    LEGISLATION  163 

acted  twice  in  the  same  session,  a  case  in  which  an  act 
had  been  repealed  three  times,  a  statute  which  was 
amended  by  a  new  statute  within  a  very  few  days  after 
its  enactment,  and  a  law,  passed  in  1911,  which  was 
repealed  in  1913,  and  then,  after  being  so  repealed, 
was  at  the  same  session  amended  and  again  repealed. 
And  in  the  same  line  a  recent  writer  observes  that 
while,  with  respect  to  other  classes  of  legislative  work, 

"the  failure  of  the  legislatures  is  to  a  certain  extent  a 
matter  of  opinion,  with  respect  to  the  drafting  of  legis- 
lation their  incompetence  is  plainly  recorded  in  the  statute 
books.  Crude,  almost  illiterate,  legislation  is  constantly 
coming  to  light  through  the  proceedings  of  the  state 
courts ;  laws  which  cannot  be  intended  to  mean  what  they 
say,  and  laws  which  mean  nothing,  are  not  uncommon. 
A  regulation  found  in  the  road  law  of  one  state  that  no 
one  shall  operate  a  political  steam  roller  or  band  wagon 
en  the  highway  doubtless  was  put  there  in  jest,  but  there 
is  nothing  funny  about  a  provision,  found  in  the  same 
state,  that  proprietors  of  hotels  shall  keep  the  walls  and 
floors  of  their  rooms  covered  with  plaster.  In  Massa- 
chusetts, where  things  are  supposed  to  be  done  better, 
one  legislature,  in  trying  to  prevent  the  display  of  the  red 
flag  of  anarchy  upon  the  highway,  succeeded  in  forbid- 
ding Harvard  students  from  carrying  their  college  ban- 
ner to  the  football  field/'6 

These  general  ideas  as  to  strengthening  the  executive 
branch  of  the  state  governments  have  not  failed  to  find 
expression  in  more  or  less  definitely  formulated  pro- 
grams, some  of  which  are  sufficiently  novel,  or  suffi- 
ciently radical,  to  require  mention.  For  example,  ac- 
cording to  a  plan  proposed  by  Mr.  Richard  S.  Childs,7 

"the  governor  and  council  would  prepare  and  introduce 
budget  and  other  legislation  and  get  the  consent  of  the 

6  Holcombe,  "State  Government  in  the  United  States,"  p.  270. 

7  In  the  National  Municipal  Review,  November,  1917,  p.  661. 


164  RELATION   OF   EXECUTIVE 

lower  -house  if  they  can.  The  lower  house  has  the  power 
of  reducing  items  in  the  budget,  and  may  repeal  laws  or 
enact  them  by  passing  them  two  years  in  succession  in 
spite  of  the  dissent  of  the  governor  and  council.  The 
governor  and  council  having  ample  administrative  service 
would  originate  the  big  legislative  projects  and  argue  for 
them  in  the  lower  house  as  administration  measures. 
Such  bills  would  be  properly  related  to  old  law  and  old  de- 
partments, as  distinguished  from  individual  freak  bills 
originating  with  the  more  amateur  representatives.  The 
lower  house  would  become  a  consenting  body,  reviewing 
and  accepting  or  rejecting  the  projects  of  the  more  ex- 
pert governor  and  council/'  Again,  we  are  told  that 
"a  very  noteworthy  scheme  was  presented  in  1918  to  the 
legislature  oif  Illinois,  but  failed  to  become  a  law.  The 
bill  provided  for  a  joint  legislative  commission,  com- 
posed of  the  governor,  lieutenant  governor,  speaker  of 
the  house,  chairmen  of  the  committees  on  appropriations 
of  the  senate  and  the  house,  chairmen  of  the  committees 
on  judiciary  of  the  senate  and  the  house,  together  with 
five  other  senators  and  five  other  members  of  the  house. 
The  purpose  of  this  commission  would  have  been  to  pre- 
pare in  advance  of  a  legislative  session  a  program  of 
legislation,  with  drafts  of  bills  on  subjects  investigated 
by  the  commission,  and  the  commission  was  given  power 
to  that  end  to  appoint  special  committees  of  its  own 
members  or  others  to  study  particular  problems  and  draft 
bills.  Nothing  short  of  actual  experience  could  determine 
the  value  of  such  a  plan  or  the  alterations  that  might  be 
required  in  it,  but  it  will  be  noted  that  it  forces  nothing 
on  the  legislature  and  creates  no  new  constitutional  prob- 
lems."8 

Altogether  the  most  comprehensive,  consistent,  and 
advanced  plan  for  the  reorganization  of  a  state's  ex- 
ecutive department  was  that  presented  to  the  Massa- 
chusetts Constitutional  Convention,  in  session  in  the 
summer  of  1917.  This  plan  was  drawn  by  Mr.  Josiah 
Quincy  of  Boston,  formerly  the  mayor  of  that  city, 
8  Freund,  "Standards  of  American  Legislation,"  p.  299. 


POWER   TO    LEGISLATION  165 

and  was  recommended  to  the  favorable  consideration 
of  the  convention  by  the  unanimous  vote  of  the  com- 
mittee on  the  executive,  to  which  it  had  been  referred. 
The  program  is  of  such  importance  and  general  inter- 
est that  the  resolutions  in  which  it  was  embodied  are 
here  set  forth  in  full. 

"Resolved,  that  it  is  expedient  to  amend  the  Constitu- 
tion by  the  adoption  of  the  subjoined  articles  of  amend- 
ment: 

"i.  The  executive  department  of  the  government  of 
the  Commonwealth  shall  include  all  executive  and  ad- 
ministrative functions  and  offices  and  all  offices  not  com- 
ing under  the  judicial  or  the  legislative  department.  All 
state  officers  whose  election  by  the  people  is  provided 
for  by  the  Constitution,  shall  be  under  the  authority  and 
control  of  the  governor,  and  all  such  officers  and  em- 
ployees without  exception  shall  furnish  him  with  any 
official  report,  information,  or  opinion  which  he  may 
require.9 

"2.  The  governor  may  remove  any  officer  subject  to 
appointment  by  him  and  coming  under  the  executive  de- 
partment for  such  specific  cause  as  he  may  assign  in 
writing,  provided  that  he  shall  first  give  such  officer  an 
opportunity,  with  three  days'  notice,  to  be  heard  by  him 
upon  the  question  of  such  removal  and  to  file  any  reasons 
against  the  same;  the  order  of  removal  and  any  such 
reasons  against  the  same  shall  be  filed  with  the  secretary 
of  the  Commonwealth  and  shall  be  a  public  record.10 

9  The  accompanying  report  of  the  committee  on  the  executive 
explains  this  provision  as   follows :     "The  first  amendment  de- 
fines  in   two   sentences   the   scope   of   the   governor's   executive 
authority.     It  subordinates  to  him,  as  supreme  executive  magis- 
trate, the  administrative  and  executive  organization  of  the  state, 
so  far  as  this  is,  or  may  be,  created  by  statute." 

10  The   committee's   report  says   that  "the   second   amendment 
gives  to  the  governor  independent  power  of  removal;  this  seems 
to  the  committee  essential  if  any  real  responsibility  is  to  be  in- 
troduced into  our  administrative  system." 


166  RELATION   OF   EXECUTIVE 

"3.  The  term  of  office  of  the  governor  and  of  the  lieu- 
tenant governor  elected  at  the  regular  state  election  in 
the  year  1918,  and  in  every  alternate  year  thereafter, 
shall  be  for  two  years  from  the  first  day  of  January  next 
ensuing.11 

"4.  At  the  beginning  of  each  regular  session,  and  at 
such  other  times  as  he  may  deem  proper,  the  governor 
shall  give  to  the  General  Court12  information  as  to  the 
state  of  the  Commonwealth  and  recommend  to  its  con- 
sideration such  measures  as  he  shall  judge  necessary  or 
expedient.  He  may  make  such  recommendations  either 
orally  or  by  written  message,  to  either  branch  of  the 
General  Court  or  to  both  branches  convened  in  joint  ses- 
sion ;  so  far  as  practicable,  he  shall  accompany  any  spe- 
cific recommendations  so  made  with  drafts  of  bills  pro- 
posed by  him.  Every  such  bill  shall  be  designated  as  an 
executive  bill  and  shall  be  before  the  General  Court  for 
its  action,  subject  to  any  amendment  thereof  which  the 
governor  may  make  by  message  while  the  same  is  pend- 
ing. If  any  such  bill  is  referred  to  a  committee  of  the 
General  Court  or  of  either  branch  thereof,  a  report  shall 
be  made  thereon  within  thirty  days  of  the  date  upon 
which  the  same  was  recommended  by  the  governor ;  and 
after  the  expiration  of  five  days  from  the  time  when  it 
is  made,  such  report  shall  be  given  precedence  in  con- 
sideration in  both  branches  over  all  other  reports  or 
bills.  No  such  executive  bill  shall  be  rejected  in  either 
branch  of  the  General  Court  except  by  a  vote  taken  by 
yeas  and  nays.13 

11  "The  third  amendment,"  says  the  committee,  "provides  for 
the  election  of  the  governor  and  lieutenant  governor  for  a  two- 
year  term.    Independent  of  any  action  which  may  be  taken  upon 
the   general  question   of   biennial   elections,   this   committee   be- 
lieves that  the  chief  executive  at  least  should  be  given  a  two- 
year  term.     It  seems  unnecessary  and  undesirable  to  continue 
the  practice  of  electing  the  governor  annually  in  this  Common- 
wealth, and  it  certainly  hampers  him  seriously  in  the  develop- 
ment of  his  policies  and  in  giving  the  thought  and  energy  which 
should  be  called  for  in  performing  the  duties  of  his  office." 

12  This  is  the  designation  given  to  the  legislature  by  the  Con- 
stitution oif  Massachusetts. 

13  The  fourth  amendment,  the  committee  explains,  "gives  for- 


POWER   TO    LEGISLATION  167 

"5.  In  case  an  executive  bill  which  the  governor  has 
by  message  recommended  to  the  General  Court  is  not 
enacted,  in  a  form  approved  and  signed  by  him,  during 
the  session  at  which  it  was  so  recommended,  the  gover- 
nor may  refer  such  bill  to  the  people  by  filing  with  the 
secretary  of  the  Commonwealth  not  later  than  the  first 
day  of  August  next  following  a  notice  of  such  reference 
accompanied  by  a  copy  of  the  bill  so  recommended.  The 
question  of  approving  or  rejecting  such  bill  shall  be  placed 
upon  the  official  ballot,  in  a  form  approved  by  the  gov- 
ernor, and  voted  on  at  the  state  election,  whether  regular 
or  special,  next  ensuing;  and  if  such  bill  is  approved  by 
a  majority  of  the  voters  voting  thereon  the  same  shall 
become  law  and  shall  take  effect  at  the  expiration  of 
thirty  days  after  the  election  at  which  it  was  approved, 
or  at  such  time  after  the  expiration  of  the  said  thirty 
days  as  may  be  fixed  in  such  bill.  In  case  any  bill  dis- 
approved by  the  governor  shall  be  passed  by  the  General 
Court  notwithstanding  his  objections,  the  same  shall  not 
take  effect  until  thirty  days  from  the  date  of  such  pas- 
sage, and  the  governor  shall  have  the  right  at  any  time 
within  such  period  to  suspend  the  operation  of  such  bill 
until  the  same  has  been  referred  to  the  people  by  filing 
with  the  secretary  of  the  Commonwealth  a  written  notice 
of  such  suspension  and  reference.  The  question  of  ap- 
proving or  rejecting  such  bill  shall  be  placed  upon  the 
official  ballot,  in  a  form  approved  by  the  governor,  and 
voted  on  at  the  state  election  next  ensuing;  and  if  such 
bill  is  approved  by  a  majority  of  the  voters  voting  thereon 
the  same  shall  become  law  and  shall  take  effect  at  the  ex- 
piration of  thirty  days  after  the  election  at  which  it  was 
approved,  or  at  such  time  after  the  expiration  of  the  said 
thirty  days  as  may  be  fixed  in  such  bill.  If  any  bill  dis- 
approved by  the  governor  fails  of  passage  by  the  Gen- 
eral Court  in  the  manner  provided  in  the  Constitution, 
the  General  Court  may,  by  resolve  which  shall  take  ef- 
fect without  being  laid  before  the  governor  for  his  ap- 

mal  recognition  and  authority,  now  lacking  in  our  Constitution, 
to  the  practice  established  in  this  state  no  less  than  in  others, 
where  it  has  formal  sanction,  of  executive  recommendations  to 
the  legislature." 


i68  RELATION    OF   EXECUTIVE 

proval,  refer  such  bill  to  the  people  in  the  manner  and 
with  the  effect  prescribed  and  set  forth  in  the  forty-sec- 
ond article  of  amendment  of  the  Constitution.14 

"6.  The  governor  may  at  any  time  attend  a  session  of 
either  branch  of  the  General  Court  and  speak  upon  any 
pending  bill.  Upon  the  written  request  of  the  governor, 
any  executive  or  administrative  officer  shall  be  admitted 
temporarily  to  a  seat  in  either  brandi  of  the  General 
Court  with  the  right  to  speak  upon  any  matter  coming 
within  or  under  his  official  authority,  but  without  a  right 
to  vote;  and  upon  the  request  of  either  branch,  made 
through  the  governor,  any  such  officer  shall  appear  in 
person  before  it.  Either  branch  of  the  General  Court 
shall  have  the  right  to  call  upon  the  governor,  or  through 
the  governor  to  call  upon  any  executive  or  administra- 
tive officer,  to  furnish  in  writing  information  as  to  any 
matter  coming  within  or  under  his  official  authority,  pro- 
vided that  such  information  need  not  be  furnished  if  the 
governor  deems  it  incompatible  with  the  public  interest 
to  communicate  the  same.15 

14  This  highly  important  provision,  it  will  be  observed,  gives  to 
the  governor  a  right  to  call  a  popular   referendum  on    (that 
is,  submit  directly  to  the  vote  of  the  electorate)  any  bill  which 
the  legislature  refuses  to  pass  on  his  recommendation,  and  also 
any  bill  which  the  legislature  persists  in  passing  over  his  veto. 
The   explanatory   report   of   the   committee   states   that:     "The 
fifth  amendment  gives  the  governor  the  right  to  submit  directly 
to  the  people,  for  adoption  or  rejection  by  them  any  executive 
bill  which  the  legislature  refuses  to  pass.    It  is  believed  by  the 
committee  that  such  a  provision  is  a  safe  one,  as  the  official 
responsibility  of  the  governor  will  cause  him  to  use  such  power 
with  discretion  and  only  when  he  believes  that  the  public  inter- 
est requires  direct  action  by  the  people." 

15  According  to  the  report  of  the  committee,  "the  amendment 
numbered  six  is  intended  to  bring  about  closer  contact  between 
the   executive  and   legislative   departments,   and   to  bring  them 
into  better  working   relations   with   each  other.     As   every  bill 
passed  by  the  legislature  has  to  come  before  the  governor  for 
his  action,  there  seems  no  reason  why  he  should  not  take  part 
in  the  discussion  of  any  pending  measure  if  he  sees  fit  to  do  so/1 


POWER   TO    LEGISLATION  169 

"7.  The  governor  shall  have  the  right  to  return  any 
bill  within  five  days  after  it  shall  have  been  laid  before 
him  to  the  branch  of  the  General  Court  in  which  it  origi- 
nated, with  a  recommendation  that  any  amendment  or 
amendments  specified  by  him  be  made  therein;  such  bill 
shall  thereupon  be  before  the  General  Court  and  subject 
to  amendment  and  re-enactment,  but  no  amendment  so 
recommended  by  the  governor  shall  be  rejected  in  either 
branch  except  by  vote  taken  by  yeas  and  nays.  If  such 
bill  is  re-enacted  in  any  form,  it  shall  again  be  laid  be- 
fore the  governor  for  his  action,  but  he  shall  have  no 
right  to  return  the  same  a  second  time  with  a  recommen- 
dation to  amend.  The  governor  shall  have  the  right,  be- 
fore acting  on  any  such  re-enacted  bill,  to  disapprove  and 
strike  out  in  the  same  any  portion  thereof  which  he  may 
deem  properly  separable  from  the  remainder,  provided 
that  within  five  days  of  the  time  when  such  bill  was  laid 
before  him  he  shall  return  to  the  branch  of  the  General 
Court  in  which  it  originated  a  true  copy  of  the  portion 
so  disapproved,  together  with  his  objections  thereto  in 
writing;  such  portion  shall  thereupon  be  subject  to  recon- 
sideration and  re-passage  in  the  same  manner  and  sub- 
ject to  the  same  requirements  as  a  bill  disapproved  by  the 
governor,  and  if  so  repassed,  such  portion  shall  be  deemed 
to  be  reinstated  in  such  bill  and  shall  have  the  force  of 
law  as  a  part  thereof/'16 

16  It  was  stated  by  the  committee  in  its  explanatory  report 
that  "the  amendment  numbered  seven  gives  the  governor  a  very 
desirable  power,  which  is  provided  for  by  the  constitutions  of  a 
number  of  states.  Instead  oi  being  confined  to  the  two  courses 
of  signing  a  bill  or  returning  it  with  his  disapproval,  this  pro- 
posal would  allow  the  governor  a  third  alternative,  he  would 
be  permitted  to  return  a  bill  with  recommendations  for  its 
amendment."  This  provision,  it  will  be  noticed,  combines  the 
principle  of  the  selective  or  partial  veto  with  the  principle  of  the 
submission  of  specific  amendments,  found  in  somewhat  the  same 
form  in  the  constitutions  of  Alabama,  Virginia',  and  Australia. 
The  states  whose  constitutions  give  the  governor  a  right  of 
partial  veto  now  number  thirty-seven,  besides  Porto  Rico  and  the 
Philippines. 


170  RELATION   OF   EXECUTIVE 

Mr.  Quincy's  plan  concluded  with  an  eighth  article 
of  amendment,  which  would  regulate  the  succession  to 
the  governorship  in  case  the  offices  of  both  the  gov- 
ernor and  lieutenant  governor  should  become  vacant. 

But  the  Massachusetts  Convention  dealt  with  this 
well  planned  and  consistent  program  in  a  manner 
which  shows  decisively  that  the  people  of  that  state  are 
not  yet  willing  to  trust  their  governor  with  more  power 
than  he  already  possesses,  either  in  respect  to  his  con- 
trol over  subordinate  officials  or  in  respect  to  his  in- 
fluence upon  the  framing  and  enactment  of  the  laws. 
The  seventh  item  of  the  program,  giving  him  author- 
ity to  return  bills  with  recommendations  for  their 
amendment  (substantially  as  quoted  above)  was  in- 
deed adopted  without  much  opposition ;  and  the  eighth, 
relating  to  the  succession  to  the  office  of  governor,  re- 
ceived the  approval  of  the  Convention;  and  these  two 
were  submitted  to  the  people  as  proposed  amendments 
to  the  constitution  and  adopted  at  the  election  in  No- 
vember, 1918.  But  notwithstanding  the  fact  that  the 
entire  plan  had  the  unanimous  support  of  the  com- 
mittee, all  the  other  items  or  proposals  were  rejected 
by  the  Convention,  in  all  instances  by  decisive  majori- 
ties and  in  some  by  a  vote  of  nearly  four  to  one.  The 
general  ground  of  opposition  seems  to  have  been  an 
ineradicable  fear  that  the  chief  executive,  if  armed 
with  a  greater  measure  of  power,  might  turn  into  a 
tyrant.  The  leaders  of  the  opposition  exhibited  a  state 
of  mind  which  was  very  prevalent  and  very  natural  in 
1780,  but  which  is  a  little  surprising  in  1918.  In  the 
course  of  the  debates  one  of  the  delegates  said  that 
governors  already  used  the  legislature  for  personal  and 


POWER   TO   LEGISLATION  171 

party  ends,  and  that  the  pending  proposition  would 
make  the  evil  worse.  Another  declared  that  it  would 
"make  the  governor  more  than  ever  the  party  boss." 
Another  "thought  the  policy  of  the  government  should 
originate  with  the  people.  The  legislature  was  more 
truly  representative  of  the  sentiment  of  the  state  than 
the  governor."  Still  another  declared  his  belief  that 
"the  proposed  system  would  enable  a  governor  to  foist 
his  views  upon  the  people  and  reduce  the  legislature  to 
a  rubber  stamp."  Another  expressed  the  view  that 
these  proposals  "would  make  the  governors  either  auto- 
crats or  nonentities,"  and  urged  the  Convention  "not 
to  expose  the  state  to  the  destruction  of  political  liberty 
by  a  despot."  This  evoked  applause.  And  the  gen- 
eral attitude  of  distrust  and  fear  was  summed  up  in  a 
declaration  by  one  of  the  delegates  that  to  give  the 
governor  power  to  appeal  to  the  people  for  their  ap- 
proval of  administrative  measures  which  the  legislature 
refused  to  pass  "would  give  a  demagogic  governor  op- 
portunity to  work  irreparable  harm  to  the  interests  of 
both  capital  and  labor." 

Similar  considerations,  it  is  probable,  brought  about 
the  rejection  of  another  very  interesting  proposal  made 
to  the  Massachusetts  Convention,  to  the  effect  that 
power  should  be  granted  to  the  Executive  Council  to 
issue  orders  relating  to  local,  special,  or  private  mat- 
ters, which,  unless  annulled  by  the  General  Court, 
should  have  the  force  of  law.  An  influential  Boston 
newspaper  commented  favorably  upon  this  proposition, 
in  the  following  terms : 

"The  first  great  gain  accruing  from  such  an  arrange- 
ment is  obvious.  It  would  relieve  the  General  Court 


172  RELATION   OF   EXECUTIVE 

from  a  heavy  burden  of  legislative  detail.  During  re- 
cent years  the  annual  ruck  of  bills  affecting  only  a  par- 
ticular city  or  town,  a  single  citizen,  or  some  matter  of 
minor  import  within  any  one  of  our  hundred  state  boards 
and  commissions,  has  outrun  all  patience.  It  crowds  the 
legislative  docket,  it  unduly  prolongs  the  session,  and, 
what  is  worst  of  all,  it  destroys  the  legislature's  sense  of 
proportion.  The  senate  and  house  are  neither  left  time 
to  deal  as  they  should  with  matters  of  large  importance 
nor  given  a  chance  to  see  through  the  maze  of  their  cal- 
endar to  an  estimate  of  what  things  truly  deserve  their 
attention.  The  acts  and  resolves  of  our  General  Court 
for  the  State  of  Massachusetts  exceed  in  number  each 
year  the  acts  of  the  London  Parliament  for  the  whole 
British  Empire.  The  explanation  of  this  anomaly  is  that 
the  Parliament  has  discovered  the  secret  of  reducing  the 
bulk  and  the  multiplicity  of  its  legislation.  It  has  con- 
ferred upon  at  least  five  of  the  cabinet  ministers  power 
to  pass  'provisional  orders'  in  many  classes  of  matters, 
and  to  give  these  orders  the  effect  of  law  unless  and 
until,  at  the  time  when  they  come  into  Parliament  in  the 
form  of  one  general  act,  any  one  of  them  may  be  stricken 
out  or  amended.  The  wisdom  of  such  disposition  seems 
almost  self-evident.  The  only  points  for  Massachusetts 
to  solve  are  the  questions,  what  exact  application  of  the 
system  should  be  made  in  this  commonwealth,  and  to 
whom  should  the  power  of  passing  statutory  orders  be 
trusted?  To  this  latter  question  the  committee  report- 
ing on  the  subject  to  the  Constitutional  Convention  finds 
the  answer  in  the  Executive  Council.  More  and  more 
frequently  during  recent  years,  the  General  Court,  in  a 
strenuous  effort  to  relieve  itself  of  some  share  of  its 
manifold  duties,  has  been  delegating  functions  of  a  legis- 
lative character  to  the  governor's  council.  Indeed,  upon 
a  complete  study  of  the  many  matters  so  committed,  all 
talk  of  abolishing  the  Council  begins  to  appear  very  poorly 
advised.  Far  more  natural  would  it  be  to  certify  and 
confirm  the  Council's  new  role  by  giving  it  the  right  to 
pass  the  proposed  provisional  orders.  This  is  what  the 
reporting  committee  suggests.  As  to  the  regulations 
which  shall  govern  the  grant,  they  are  many  and  several. 


POWER   TO    LEGISLATION  173 

They  do  not  permit  the  Council  to  pass  any  order  in- 
volving an  expenditure  of  the  commonwealth's  funds  un- 
less from  an  appropriation  already  made.  They  provide 
that  whenever  an  order  fails  to  receive  a  unanimous  vote 
of  the  Council's  membership,  together  with  the  approval 
of  the  governor,  it  shall  be  left  open  to  amendment  or 
outright  annullment  by  the  General  Court.  The  legisla- 
ture's authority  is  thus  preserved  intact  within  all  reason- 
able limits,  and  at  the  same  time  the  legislature's  promise 
of  usefulness,  with  respect  to  all  matters  of  major  im- 
portance, is  greatly  increased,  to  say  nothing  of  the  new 
despatch  and  simplicity  which  the  Council  system  would 
bring  to  pass  in  the  conduct  of  local  and  state  adminis- 
tration. The  proposal  here  outlined  is  not  of  that  com- 
manding value  which  would  inhere  in  some  truly  great 
constitutional  move  to  enhance  the  powers  of  the  ex- 
ecutive branch  in  all  matters  of  legislation,  and  thus  to 
increase  and  determine  the  executive's  responsibility  to 
the  people  at  large.  But  it  is  a  soundly  considered  re- 
form which  may  well  be  taken  on  its  own  merits."17 

Whatever  may  be  thought  of  the  rest  of  the  pro- 
gram, it  is  to  be  regretted  that  Massachusetts  has  not 
been  willing  to  set  an  example  in  reforming  the  ex- 
ecutive branch  of  the  government  by  reducing  the  num- 
ber of  elective  officers,  or,  rather,  by  making  most  of 
them  subject  to  appointment  by  the  governor,  and  by 
giving  the  governor  a  much  greater  power  of  direc- 
tion, control,  and  removal  over  the  whole  system  of 
administrative  officials.  It  is  the  dissipation  of  ex- 
ecutive power,  the  lack  of  co-ordination  among  the 
departments,  and  the  lack  of  responsibility  to  a  cen- 
tral authority  which  have  reduced  our  state  govern- 
ments to  a  condition  of  inefficiency  and  mismanage- 
ment. Nominally  the  governor  of  a  state  is  its  chief 
executive.  Actually  he  is  nothing  of  the  kind.  Al- 

17  Boston  Evening  Transcript,  August  5,  1918. 


174  RELATION   OF   EXECUTIVE 

most  exclusively  he  is  a  political  officer,  and  the  ex- 
ecutive power  is  parceled  out  in  fragments  among  a 
large  number  of  elected  administrative  officers,  heads 
of  departments,  chiefs  of  bureaus,  boards,  commis- 
sions, and  superintendents  of  this,  that,  and  the  other, 
whose  independence  of  the  governor  and  of  each  other 
has  resulted  in  an  almost  complete  disintegration  of 
the  executive  branch. 

"American  administrative  law,"  says  a  recent  writer  on 
that  subject,  "has  added  to  the  famous  trinity  of  Montes- 
quieu a  fourth  department,  viz.,  the  administrative  de- 
partment, which  is  almost  entirely  independent  of  the 
chief  executive,  and  which,  so  far  as  the  central  admin- 
istration is  concerned,  is  assigned  to  a  number  of  officers 
not  only  independent  of  the  governor  but  independent 
of  each  other." 

In  the  first  place,  the  movement  by  which,  dur- 
ing the  first  half  of  the  nineteenth  century,  the  greater 
part  of  the  chief  administrative  offices,  as  well  as  those 
of  the  counties  and  cities,  were  made  elective  by  popu- 
lar vote  was  a  movement  in  the  direction  of  democrat- 
izing the  government,  but  it  brought  the  inevitable  pen- 
alty of  decentralization.  On  this  subject  Professor 
Holcombe  has  well  said : 

"The  direct  popular  election  of  the  principal  executive 
officers,  at  the  same  time  that  it  rendered  them  more  in- 
dependent of  the  legislatures,  also  rendered  them  more 
independent  of  one  another.  The  governor,  secretary  of 
state,  treasurer,  attorney  general,  and  other  central  offi- 
cers became  supreme,  each  in  his  own  department.  They 
became  severally  and  equally  responsible  to  the  people. 
In  a  word,  the  executive  branch  of  the  state  govern- 
ments became  what  is  technically  known  as  a  plural  ex- 
ecutive. The  direct  popular  election  of  subordinate  and 
local  administrative  officers  produced  a  similar  effect. 
The  sheriff,  county  clerk,  county  treasurer,  prosecuting 


POWER   TO   LEGISLATION  175 

attorney,  and  other  similar  officials  became  supreme, 
each  in  his  own  department.  They  became  severally  and 
equally  responsible  to  the  people.  Thus  the  state  execu- 
tives were  decentralized  as  well  as  disintegrated.  .  .  . 
Candidates  for  state  and  local  administrative  offices  on 
the  same  party  ticket  were  bound  to  make  common  cause 
with  one  another  during  the  campaign.  After  election, 
however,  their  community  of  interest  centered  around 
the  problem  ojf  re-election  rather  than  around  the  work 
of  public  administration.  Party  ties  had  their  place  in 
purely  political  affairs,  but  except  for  the  governor  the 
administrative  officers  had  no  legitimate  connection  with 
affairs  of  that  nature.  State  or  county  administrative 
officers  might  form  rings  for  their  mutual  political  bene- 
fit, but  they  rarely  formed  rings  for  the  benefit  of  the 
public.  Between  state  and  local  officials,  party  ties  as 
such  were  of  even  less  use  in  promoting  systematic  and 
efficient  administrative  action.  .  .  .  The  disorganization 
of  state  administration  was  in  striking  contrast  to  the 
centralization  and  integration  of  party  management."18 

To  undo  all  this  and  restore  efficiency  to  the  gov- 
ernment, it  would  be  necessary  to  give  the  governor  not 
only  the  power  to  appoint  the  members  of  his  admin- 
istrative staff  and  the  heads  of  the  various  depart- 
ments, but  also  to  remove  them  from  office,  on  a  more 
or  less  summary  process,  when  such  a  step  was  deemed 
necessary  in  the  public  interests.  These  powers  are 
vested  in  the  President  of  the  United  States,  who  is 
the  real  and  not  merely  the  nominal  head  of  the  whole 
federal  hierarchy.  Such  powers  are  considered  abso- 
lutely indispensable  in  the  case  of  the  responsible  head 
of  any  important  private  or  semi-public  business.  Is 
the  example  of  the  United  States  unworthy  of  consid- 
eration? Is  the  result  of  the  federal  experiment  dis- 

18  Arthur  N.  Holcombe,  "State  Government  in  the  United 
States,"  pp.  280,  282. 


j;6  RELATION   OF   EXECUTIVE 

couraging?  Is  the  conduct  of  the  business  of  a  com- 
monwealth of  less  importance  than  that  of  a  manufac- 
turing enterprise  ? 

'The  framers  of  our  Constitution/'  observes  a  former 
President,  "had  one  essential  feature  of  efficient  govern- 
ment clearly  in  mind.  They  gave  to  the  executive  officer 
charged  in  law  with  the  responsibility,  and  actually 
charged  by  the  people  with  the  responsibility,  of  carrying 
on  the  executive  department  of  the  government  the  power 
and  means  of  meeting  that  responsibility.  They  vested 
in  him  complete  power  to  appoint  all  the  officers  of  the 
government  who  were  subordinate  to  him,  and  upon 
whose  -political  capacity  and  governmental  discretion 
would  depend  the  wise  carrying  out  of  his  policies.  They 
gave  him  the  power  of  absolute  removal,  and  they  placed 
in  his  hands  the  control  of  the  action  of  all  those  who 
took  part  in  the  discharge  of  the  political  duties  of  the 
executive  department.  They  acted  on  a  sound  political 
principle,  and  it  ought  to  be  introduced  into  every  field 
of  governmental  activity,  into  the  states  and  into  the 
cities.  The  plan  under  which  a  dozen  state  officers  en- 
gaged in  executing  the  laws  are  elected  on  one  ticket  and 
have  no  relation  of  subordination  to  the  normal  executive 
head,  the  governor,  is  as  absurd  as  it  can  be.  It  is  one 
of  those  anomalies  in  our  political  history,  of  which  there 
are  a  number,  which  seem  to  refute  the  idea  that  we  are 
an  intelligent  and  clear-sighted  people,  because  the  sys- 
tem adopted  is  so  utterly  at  variance  with  the  teachings 
of  experience.  But  we  have  had  such  governments — in- 
deed most  of  our  state  governments  are  of  this  kind. 
They  have  not  been  as  good  governments  as  they  might 
have  been  or  as  they  ought  to  have  been,  and  yet  they 
have  worked.  The  fact  that  they  have  worked  may  prop- 
erly be  taken  as  the  most  conclusive  evidence  of  the  po- 
litical capacity  of  the  American  people  through  public 
opinion  to  maintain  a  fairly  good  government,  and  to  get 
along  somehow  with  what  seems  a  priori  to  be  an  im- 
possible system."19 

19  William  H.  Taft,  "Our  Chief  Magistrate,"  p.  76. 


POWER   TO    LEGISLATION  177 

But  it  is  not  only  the  heads  of  departments  who 
should  be  subject  to  discipline  and  removal  by  the  gov- 
ernor. To  secure  a  really  efficient  and  well  articulated 
executive  department,  it  would  be  necessary  that  this 
power  should  reach  down  to  all  of  the  officers,  includ- 
ing those  of  the  counties  if  not  of  the  cities,  who  have 
to  do  with  carrying  the  laws  into  effect.  As  experience 
is  the  best  teacher,  and  a  lessen  from  history  is  more 
impressive  than  any  amount  of  abstract  reasoning,  we 
may  be  content  to  leave  this  part  of  the  subject  with 
the  recital  of  the  following  anecdote,  vouched  for  by 
a  very  high  authority  on  constitutional  government: 

"Not  very  long  ago  a  mob  of  unmasked  men  rescued  a 
prisoner  with  whom  they  sympathized  from  the  sheriff 
of  a  county  in  one  of  our  states.  The  circumstances  of 
the  rescue  made  it  very  evident  that  the  sheriff  had  made 
no  serious  attempt  to  prevent  the  rescue.  He  had  had 
reason  to  expect  it,  and  had  provided  no  sufficient  armed 
guard  for  his  prisoner.  The  case  was  so  flagrant  that  the 
governor  of  the  state  wrote  the  sheriff  a  sharp  letter  of 
reprimand,  censuring  him  very  justly  for  his  neglect  of 
duty.  The  sheriff  replied  in  an  open  letter,  in  which  he 
curtly  bade  the  governor  mind  his  own  business.  The 
sheriff  was,  he  said,  a  servant  of  his  county,  responsible 
to  its  voters  and  not  to  the  governor.  And  his  imperti- 
nence was  the  law  itself.  The  governor  had  no  more 
authority  over  him  than  the  youngest  citizen.  He  was 
responsible  only  to  the  people  of  his  own  county,  from 
whose  ranks  the  mob  had  come  which  had  taken  his 
prisoner  away  from  him.  He  could  have  been  brought 
to  book  only  by  indictment  and  trial — indictment  at  the 
instance  of  a  district  attorney  elected  on  the  same  ticket 
with  himself,  by  a  grand  jury  of  men  who. had  voted  for 
him,  and  trial  by  a  petit  jury  of  his  neighbors,  whose 
sympathy  with  the  rescue  might  be  presumed  from  the 
circumstances."20 

20  Woodrow  Wilson,  "Constitutional  Government  in  the  United 
States"  (1908),  p.  204. 


178  RELATION   OF   EXECUTIVE 

But  further,  if  the  regime  of  government  by  boards 
and  commissions  is  to  continue,  it  will  be  absolutely 
necessary  for  the  proper  integration  of  the  state  gov- 
ernment, the  harmonious  working  of  its  various  or- 
gans, and  the  efficient  conduct  of  its  business,  that 
these  shall  be  brought  more  directly  under  the  guid- 
ance and  control  of  the  governor.  The  boards  and 
commissions  alluded  to  are  those  which  are  vested 
with  the  state's  authority  and  power  of  regulation  over 
such  matters  as  public  education,  the  banks,  the  rail- 
roads, corporations  in  general,  public  utility  companies 
in  particular,  insurance,  charities,  agriculture,  the  con- 
servation and  development  of  natural  resources,  game 
and  fisheries,  the  public  health,  workmen's  compensa- 
tion or  insurance,  employment,  labor  statistics,  and  so 
on.  It  is  rather  amazing  to  read  that,  in  Massachus- 
etts, 

"at  present  there  are  more  than  one  hundred  separate 
administrative  agencies  of  the  central  government  charged 
with  the  direct  enforcement  of  law  or  with  the  supervi- 
sion of  the  activities  of  local  administrative  authorities.21 
In  Illinois,  also,  there  are  more  than  one  hundred  sepa- 
rate state  offices,  boards,  and  commissions,  created  by 
statute,  in  addition  to  those  created  by  the  constitution. 
Less  than  a  fourth  of  those  now  in  existence  were  cre- 
ated before  1870,  and  more  than  a  third  have  been  cre- 

21  But  an  amendment  to  the  constitution  of  Massachusetts 
adopted  in  1918  provides  that,  on  or  before  January  i,  1921,  "the 
executive  and  administrative  work  of  the  commonwealth  shall  be 
organized  in  not  more  than  twenty  departments,  in  one  of  which 
every  executive  and  administrative  office,  board  and  commission, 
except  those  officers  serving  directly  under  the  governor  or  the 
council,  shall  be  placed.  Such  departments  shall  be  under  such 
supervision  and  regulation  as  the  general  court  may  from  time 
to  time  prescribe  by  law." 


POWER   TO   LEGISLATION  179 

ated  since  1900.  In  New  York  there  were  in  1915  no 
less  than  152  separate  state  administrative  agencies. 
There  are  no  other  states  in  which  the  growth  in  the  ac- 
tivities of  the  central  government  has  produced  so  many 
separate  administrative  agencies  as  in  New  York,  but 
there  is  no  state  where  the  organization  of  the  admin- 
istrative branch  of  the  government  retains  its  early  nine- 
teenth-century simplicity."22 

In  the  government  of  the  United  States  also  we  have 
witnessed  the  rise  of  commissions  of  vast  importance 
and  of  even  vaster  powers.  Speaking  only  of  those 
which  belong  to  normal  times  of  peace  and  which  were 
in  existence  before  the  war,  take,  for  example,  the  In- 
terstate Commerce  Commission,  the  Federal  Trade 
Commission,  the  Federal  Reserve  Board,  the  Federal 
Farm  Loan  Board,  and  the  Federal  Board  for  Voca- 
tional Education,  and  think  of  the  almost  immeasur- 
able influence  (not  to  say  control)  which  is  exercised 
over  the  industries,  the  agriculture,  the  transportation, 
and  the  financial  resources  of  the  country  by  the  small 
number  of  men  who  constitute  a  majority  of  the  mem- 
bers of  the  several  boards  named.  But  in  the  federal 
government  the  process  has  been  one  of  centralization,  I  / 
not  of  disintegration;  and  however  much  the  admin- 
istrative authority  of  the  government  may  appear  to 
have  been  divided  and  apportioned,  it  must  be  remem- 
bered that  all  of  these  agencies  are  responsible  to  the 
one  supreme  executive  authority,  the  President  of  the 
United  States,  at  least  to  the  extent  implied  in  the  fact 
that  he  exercises  both  the  power  of  appointment  and 
that  of  removal  over  their  personnel. 

22  Arthur    N.    Holcombe,    "State    Government    in   the    Unit 
States,"  pp.  286,  287. 


180  RELATION   OF   EXECUTIVE 

But  it  is  far  otherwise  in  the  state  governments.  So 
far  as  control  is  retained  over  the  administrative  agen- 
cies, it  is  vested  in  the  legislative  department,  not  the 
executive.  On  this  point  it  has  been  correctly  ob- 
served : 

"The  legislature  often  endows  these  boards  or  com- 
missions with  large  powers,  and  while  these  powers  may 
be  modified  or  withdrawn  by  legislative  action,  so  long 
as  they  are  resident  in  the  board  it  is  practically  free  of 
executive  control,  as  the  power  of  removal  is  either  de- 
nied the  governor  or  so  conditioned  as  to  make  its  ex- 
ercise most  difficult  if  not  impossible.  Thus  the  legisla- 
tive power  is  enlarged  by  the  creation  of  certain  ad- 
ministrative offices,  still  kept,  so  far  as  they  are  depend- 
ent, within  legislative  control.  In  the  federal  realm  these 
boards  have  given  added  influence  and  administrative 
power  to  the  executive,  since  they  are  usually  placed  un- 
der his  direction  and  he  has  full  power  of  removal  as 
well  as  of  appointment.  The  governor  of  the  state  is  pre- 
vented from  being  in  the  same  sense  the  administrative 
head  of  the  state,  partly  by  the  fact  that  his  power  of 
appointment  is  more  limited,  all  or  nearly  all  the  im- 
portant executive  and  judicial  officers  being  now  elective, 
and  partly  by  the  other  fact  that  the  executive  boards  of 
his  appointment  are  generally  beyond  his  control."23 

23Finley,  "The  American  Executive,"  p.  180. 


VIII 

SUMMARY  AND  CONCLUSION 

If  we  still  retain  the  belief,  so  long  an  axiom  of  our 
political  faith,  that  the  preservation  of  liberty  requires 
the  separation  of  the  powers  of  government;  if  we 
sincerely  mean  what  we  say  when  we  speak  of  democ- 
racy as  the  ultimate  achievement  of  the  ages  and  as  the 
universal  order  of  a  re-born  world;  and  if,  at  the  same 
time,  we  expect  our  governments  to  be  vigorous  and 
efficient — then  we  must  profit  by  the  lesson  which  re- 
cent experience  very  plainly  points  out,  namely,  that 
the  successful  working  of  government  to  the  end  of 
preserving  liberty,  realizing  democracy,  and  function- 
ing with  sureness  and  strength,  under  our  constitu- 
tional systems  as  we  have  them  now,  depends  upon  the 
due  balancing  of  power  as  between  the  executive  and 
legislative  branches.  If  the  former  becomes  the  mas- 
ter of  the  latter,  there  is  a  gain  in  the  energy  and  ef- 
fectiveness of  government.  But  it  is  at  the  expense  of 
liberty,  because  the  will  and  purpose  of  one  man  are, 
to  the  extent  of  that  predominance,  put  in  place  of  the 
collective  will  of  the  people  as  voiced  through  their 
representatives.  Hthe  legislative  power  absorbs  more 
than  its  just  share  of  control  over  the  operations  and 
fHe~3estinies  of  the  state,  we  make  a  nearer~approach 
icTpure  democracy.  But,itJs..ajiemQ.cracy  wKicti  dissi- 
*"paFes  its  energylmd  fumbles  its  tasks.  We  have  seetf 


i8a  RELATION   OF   EXECUTIVE 

the  one  event  emerge  into  view  as  the  result  of  forces 
and  tendencies  in  our  national  government.  We  have 
seen  that  the  other  event  may  fairly  be  predicated  of 
our  state  governments  as  they  exist  today.  In  both 
cases  there  has  been  a  wide  departure  from  the  spirit 
and  the  plan  upon  which  our  institutions  were  con- 
ceived and  set  in  motion.  In  neither  case  is  the  final 
result  to  be  accepted  as  satisfactory  or  even  tolerable. 
But  to  both  aspects  of  the  problem  the  best  answer  and 
the  solution  most  to  be  desired  are  the  same — to  ar- 
rest the  swing  of  the  pendulum,  to  restore  the  lost 
equipoise. 

In  the  states,  it  is  true,  the  process  of  readjustment 
need  not  involve  any  further  restraints  upon  the  legis- 
latures. Rather,  the  balance  is  to  be  re-established  by 
raising  the  influence  and  authority  of  the  governor, 
now  sunk  too  low.  The  various  plans  for  making  him 
a  real  factor  in  legislation,  and  the  leader  of  the  state 
in  its  policies  and  in  its  work  for  the  public  welfare — 
in  short,  for  re-investing  him  with  powers  actually 
commensurate  with  the  responsibility  which  he  as- 
sumes on  taking  office — have  been  sufficiently  discussed 
in  the  preceding  pages.  Above  all,  however,  the  pro- 
cess of  decentralization  must  be  reversed.  '  There  must 
be  a  gathering  up,  a  reconcentration,  of  those  powers 
and  functions  which  have  been  recklessly  divided  and 
subdivided  and  spread  broadcast  among  a  host  of 
boards,  commissions,  and  minor  administrative  offi- 
cers ;  or,  at  the  very  least,  there  must  be  a  co-ordination 
of  the  executive  agencies  of  the  state  and  a  fair  and 
reasonable  subordination  of  the  whole  to  the  control  of 
the  chief  magistrate.  Only  thus  can  efficiency,  order, 
co-operation,  and  progress  be  assured. 


POWER   TO    LEGISLATION  183 

In  the  nation's  affairs,  on  the  other  hand,  we  have 
witnessed  the  decay  of  representative  government,  and 
the  substitution  for  it  of  a  presidential  autocracy.  The 
Constitution  declares  that  "all  legislative  powers  here- 
in granted  shall  be  vested  in  a  Congress  of  the  United 
States/'  But  where  is  the  legislative  power  now 
vested  ?  The  enacting  clause  of  every  act  of  Congress 
represents  it  as  vested  in  "the  Senate  and  House  of 
Representatives  in  Congress  assembled/'  Formally 
this  is  true,  but  formal  enactment  is  one  thing,  inspira- 
tion and  control  are  other  things.  The  Constitution 
directs  that  the  President  "shall  from  time  to  time 
give  to  the  Congress  information  of  the  state  of  the ^^ 
Union,  and  recommend  to  their  consideration  such 
measures  as  he  shall  judge  necessary  and  expedient." 
But  recommending  that  a  measure  should  be  consid- 
ered and  demanding  thatjt  shall  be  enacted  are  by  no  \  j 
means  identical  steps.  /Yet  it  has  come  to  pass  that 
practically  all  measures  of  first-rate  importance  are 
now,  wholly  or  in  part,  written  in  the  White  House  or 
under  its  specific  direction,  or  in  the  executive  depart- 
ments. They  are  then  transmitted  unofficially  to  some 
member  of  the  Congress  for  introduction,  and  forced 
through  the  legislative  mill  by  the  strong  pressure  of 
the  executive  arm.  The  President  has  obtained  virtu- 
ally complete  control  of  our  foreign  relations  and  of 
our  domestic  policies  as  well.  From  being  the  leader 
of  his  party  he  has  become  the  leader  of  the  nation. 
Instead  of  being  the  adviser  of  Congress,  he  is  its 
governor.  The  executive,  and  not  the  legislature,  has 
come  to  be  regarded  as  the  trustee  of  the  public  wel- 
fare. \ 


184  RELATION    OF   EXECUTIVE 

The  balance  of  power  is  dislocated.  Its  restoration 
should  not  be  a  matter  of  making  a  law  or  a  legislative 
rule,  still  less  of  constitutional  change.  If  presidents 
were  content  to  play  the  part  for  which  the  Constitu- 
tion has  cast  them,  if  legislators  had  a  truer  concep- 
tion of  their  office  and  a  larger  measure  of  devotion  to 
their  trust,  no  ordinance  would  be  necessary.  With 
more  self-restraint  and  greater  respect  for  the  funda- 
mental principles  of  constitutional  government  on  the 
one  side,  and  with  more  courage  and  independence  and 
a  profounder  sense  of  responsibility  on  the  other  side, 
the  equilibrium  of  the  Constitution  would  be  regained, 
ship  of  state  would  right  itself. 

But  perhaps  it  is  impossible  to  return  to  the  order 
of  an  earlier  day.  Perhaps  the  processes  of  institu- 
tional evolution  have  swept  us  too  far  along  the  cur- 
rent of  an  irresistible  stream.  It  may  be  that  presi- 
dents, not  necessarily  or  personally  avid  of  power, 
have  found  themselves  borne  on  the  tide  of  forces 
which  they  did  not  originate  and  are  powerless  to  con- 
trol. It  may  be  that  it  is  politically  impossible  for  a 
body  comprising  more  than  500  members  to  contend 
successfully  for  mastery  against  the  concentrated 
power  of  a  single  magistrate,  their  leader  by  force  of 
circumstances,  and  whom,  for  a  fixed  term  of  years, 
they  cannot  overturn  nor  confine  within  any  definition 
of  his  office  other  than  that  which  he  conceives  for 
himself.  Or  it  may  be  that  the  greater  portion  of  our 
people  are  careless  of  constitutional  theories  and  prac- 
tices, that  they  are  satisfied  with  the  conduct  of  the 
nation's  business  as  it  is,  and  that  they  prefer  presi- 
dential government  to  representative  government  be- 


POWER   TO   LEGISLATION  185 

cause  it  "gets  results."  Or  if  they  have  no  positive 
preference,  at  least  they  acquiesce.  If  this  be  so,  what 
are  we  going  to  do  about  it?  It  is  unlike  Americans 
to  let  affairs  drift  aimlessly — that  is,  beyond  a  certain 
point.  When  a  growth  has  become  too  heavy  or  too 
unsightly,  we  seek  the  surgeon.  When  a  political  situ- 
ation shocks  our  sense  of  order  and  good  government, 
we  turn  back  our  cuffs  and  set  it  right. 

So  then,  first  of  all,  let  us  have  done  with  secret  and 
subterranean  and  underhand  and  unacknowledged 
methods.  Let  us  cast  away  hypocrisy  and  pretense,  \  j  / 
and  renounce  makeshifts  and  evasions.  Let  us  take 
this  whole  matter  out  of  the  realm  of  hap-hazard  and 
apparel  it  with  the  respectable  vestments  of  due  pro- 
cess of  law.  Let  us  proceed  like  sober  men,  who  think 
the  serious  business  of  government  demands  frank- 
ness and  truth  and  honor,  and  not  like  children  play- 
ing hide-and-seek.  If  we  have  outgrown  the  rules  of 
the  game,  let  us  make  new  rules.  But  let  us  play  the 
game  openly,  and  not  put  up  with  shams. 

For  the  whole  matter  and  process  of  presidential 
interference  with  the  making  of  laws  is  a  tissue  of 
pretense  and  camouflage.  Dictation  lurks  under  the 
guise  of  "recommendation"  and  advice.  We  still  sol- 
emnly pretend  that  "all  legislative  powers  are  vested 
in  a  Congress  of  the  United  States."  The  presidential 
steamroller  is  masked  with  flowers  of  rhetoric,  of  com- 
mon counsel,  of  deference  mingled  with  desire.  And 
it  ill  becomes  a  truth-loving  people  to  endure  such  a 
system.  If  it  cannot  be  brought  to  an  end,  or  if  we 
really  wish  it  to  continue,  we  can  make  its  paths 
straight,  we  can  free  it  from  all  necessity  for  dissimu- 


i86  RELATION   OF   EXECUTIVE 

lation,  we  can  let  in  the  light  of  the  sun  upon  it,  we  can, 
in  short,  candidly  acknowledge  it,  establish  it  upon  a 
basis  of  legality,  give  it  frankness  instead  of  stealth, 
honor  in  place  of  opprobrium. 

No  constitutional  change  will  be  necessary.  It  will 
not  be  a  question  of  bringing  within  the  Constitution 
something  which  it  does  not  now  permit.  It  is  merely 
acknowledging  the  existence  of  something  which  it 
does  not  forbid.  It  only  recognizes  the  fact  that  our 
conception  of  the  purposes  of  the  Constitution,  in  cer- 
tain details,  has  changed,  or  that  there  has  grown  up  a 
"usage  of  the  Constitution"  which  lies  partially  out- 
side its  letter  but  is  in  no  way  contrary  to  its  explicit 
prescriptions. 

First  let  it  be  admitted  that  the  President's  consti- 
tutional power  to  recommend  to  Congress  such  meas- 
ures of  legislation  as  he  may  deem  necessary  and  ex- 
pedient fully  empowers  him  to  recommend  the  enact- 
ment of  a  bill,  completely  drafted,  which  he  may 
transmit  with  his  message.  But  let  us,  in  the  next 
place,  be  very  clear  that  there  is  no  one  else  in  the 
official  hierarchy  who  has  this  authority.  As  this  is 
written  there  lies  before  my  eyes  a  press  clipping 
which  recites  that 

"on  the  eve  of  his  surrender  of  his  portfolio  as  Secre- 
tary of  the  Treasury,  Mr.  McAdoo  transmitted  to  one  of 
the  Democratic  leaders  in  the  Senate  a  recommendation 
that  there  be  enacted  a  law  authorizing  the  Secretary  of 
the  Treasury,  under  restrictions  similar  to  those  now 
prevailing,  to  continue  to  extend  additional  credits  to 
foreign  governments.  This  recommendation  was  ac- 
companied by  the  draft  of  a  proposed  bill  carrying  the 
suggested  authority." 


POWER   TO    LEGISLATION  187 

Surely  this  needs  no  comment.  Or  rather,  it  is  a 
sufficient  comment  in  itself  on  the  length  to  which  ex- 
ecutive interference  with  legislation  has  been  carried. 
But  nowhere  in  the  Constitution  are  the  heads  of  de- 
partments invested  with  authority  to  "recommend  to 
the  Congress  such  measures''  as  they  "shall  deem  nec- 
essary and  expedient."  In  law,  that  has  been  reserved 
for  the  President.  Let  it  be  so  reserved  in  fact.  Of 
course  there  is  no  reason  why  a  cabinet  minister  should 
not  be  eminently  qualified  to  draft  a  model  law  on  a 
subject  relating  to  his  department.  As  between  such 
a  draftsman  and  the  average  member  of  Congress,  the 
presumptions  are  all  in  favor  of  the  former.  But  his 
function  in  legislation  ends  with  the  drafting  of  the 
bill.  The  function  of  recommendation  belongs  to  the 
President  alone.  In  other  words,  department  bills  or 
administration  bills,  by  whomsoever  drawn,  should  be 
sent  to  Congress  only  by  the  President  and  only  with 
his  explicit  approval. 

How  and  by  whom  shall  they  be  received  ?  It  would 
be  a  simple  matter  for  each  house  to  provide  by  its 
rules  for  a  "Committee  on  Presidential  Bills."1  All 

1  There  is  a  precedent  for  the  appointment  of  such  a  commit- 
tee. At  the  opening  of  each  session,  each  house  appoints  and 
sends  a  committee  "to  wait  upon  the  President  and  to  inform 
him  that  Congress  is  now  in  session  and  ready  to  receive  any 
communications  he  may  desire  to  make."  And  so  also,  just 
before  the  adjournment  of  Congress  at  the  close  of  each  ses- 
sion, it  is  the  custom  of  the  Senate  and  the  House  to  appoint 
a  committee  "to  wait  upon  the  President  and  jnquire  whether 
he  has  any  further  communications  to  make  to  Congress." 
Therefore  it  would  only  be  enlarging  upon  an  established  usage 
if  a  permanent  committee  in  each  house  were  appointed  to  re- 


i88  RELATION   OF   EXECUTIVE 

such  projects  of  laws  should  be  sent  from  the  executive 
offices  to  the  chairman  of  that  committee  in  either  the 
Senate  or  the  House  (or  perhaps  to  both  simultaneous- 
ly) and  sent  openly  and  as  a  matter  of  usual  and  for- 
mal routine,  and  not  by  the  devious  hands  of  some 
unacknowledged  agent.  And  they  should  be  sent  to 
no  other  person  whomsoever.  If  an  "administration 
bill"  or  one  "known  to  have  the  approval  of  the  Presi- 
dent" were  offered  in  either  house,  that  house  should 
refuse  to  receive  it  save  at  the  hands  of  its  proper  com- 
mittee. Or  if  that  were  too  severe  a  measure  to  com- 
port with  senatorial  courtesy,  it  should  forthwith  be 
referred  to  the  Committee  on  Presidential  Bills — and 
not  without  some  deprecation  of  the  irregularity  in 
the  manner  of  its  introduction. 

In  the  regular  course  it  should  be  the  duty  of  the 
chairman  of  that  committee  to  present  to  the  house 
every  bill  emanating  from  the  President's  office,  and, 
with  the  consent  of  at  least  a  majority  of  his  colleagues 
on  the  committee,  to  move  its  reference  to  that  one  of 
the  standing  committees  to  which  it  appropriately  be- 
longs. This  determination  of  jurisdiction  over  a  bill 
is  sometimes  the  subject  of  sharp  wrangling  in  Con- 
gress. It  is  to  minimize  this  possibility  that  the  pro- 
posal is  made  that  the  motion  for  reference  should  be 
made  by  the  committee,  supporting  its  chairman  as  its 
spokesman.  Indeed  this  is  one  of  the  reasons  for  hav- 


ceive  from  the  President  all  such  communications  as  he  might 
choose*  to  make  in  the  form  of  bills  drafted  in  shape  for  enact- 
ment. 


POWER   TO    LEGISLATION  189 

ing  a  committee  of  several  members  instead  of  a  soli- 
tary though  official  mouthpiece  for  the  executive.  For 
the  collective  force  of  a  respectable  committee  might 
very  well  prevail  where  the  voice  of  an  individual  mem- 
ber (perhaps  not  the  most  influential  in  the  house) 
would  not  rise  above  the  din  of  contending  claimants 
for  control  of  the  bill.  And  for  the  same  reason  pro- 
vision should  be  made  that  something  more  than  a 
mere  majority  should  be  required  to  change  the  desti- 
nation of  the  bill  as  demanded  by  the  committee. 

But  the  work  of  the  committee  would  not  stop  with 
the  proper  reference  of  the  bill.  It  might  be  ordered 
in  the  rules  of  the  houses  that  presidential  bills  should 
be  reported  out  within  a  certain  limited  time  and  that 
they  should  have  a  privileged  place  upon  the  calendar. 
It  would  be  the  duty  of  the  committee  to  see  that  this 
course  was  followed.  It  should  be  the  guardian  of  the 
bill  (save  for  its  discussion  in  the  standing  commit- 
tee) until  its  final  passage  or  defeat.  Of  course  free- 
dom of  amendment  need  be  in  no  way  restricted.  And 
who  would  champion  the  bill  on  the  floor?  Perhaps 
the  chairman  of  the  Committee  on  Presidential  Bills. 
But  he  might  be  hostile  to  it.  Then  it  would  easily 
find  some  other  defender.  Have  we  not  seen  a  bill, 
favored  by  the  administration,  for  a  conscriptive  mili- 
tary service  law  discountenanced  by  the  chairman  of  the 
committee  having  it  in  charge,  and  taken  up  and  de- 
fended and  put  through  by  another  member,  himself 
ranking  with  the  opposing  political  party?  The  in- 
quiry is  pertinent  whether  the  cabinet  minister  to 
whose  department  the  bill  relates  (who  perhaps  wrote 


190  RELATION   OF   EXECUTIVE 

it  himself)  should  be  admitted  to  the  floor  to  speak 
upon  it.  But  if  the  conclusions  we  reached  in  an  earlier 
chapter,  where  the  whole  subject  of  the  participation 
of  the  cabinet  in  the  proceedings  of  Congress  was  con- 
sidered in  detail,  possess  any  validity,  they  show  that 
the  course  here  suggested  would  be  unnecessary  and 
far  too  dangerous  an  experiment  to  be  entered  upon 
without  grave  searching  into  its  probable  and  ultimate 
consequences. 

It  will  be  said  that  such  a  system  of  dealing  with 
administration  bills  as  is  here  outlined  would  tend  in- 
evitably to  vest  in  the  executive  a  virtual  monopoly  of 
the  initiative  in  legislation,  and  thus  to  superimpose 
the  distinctive  features  of  parliamentary  government 
upon  a  system  which  is  in  no  way  adapted  to  it,  because 
of  the  fixed  tenure  of  the  executive.  Undoubtedly 
there  is  that  danger.  But  it  is  not  so  formidable  as  it 
looks.  For  no  immemorial  usage  has  yet  entirely 
quenched  the  independent  spirit  of  the  American  legis- 
lator, however  much  circumstances  may  have  bound 
his  hands.  Say  what  one  will,  there  are  still,  and  there 
always  will  be,  senators  and  representatives  who  are 
not  content  to  be  mere  rubber  stamps,  nor  merely  to 
register  another's  will.  Somehow,  and  within  what- 
ever limits  you  set  them,  they  will  speak  their  minds 
and  cast  their  ideas  in  the  form  of  bills,  and  struggle 
courageously  for  their  enactment.  It  is  clear  that  the 
congressman's  individual  power,  and  even  his  collec- 
tive power,  is  waning.  It  will  not  be  extinguished,  but 
it  cannot  be  denied  that  it  may  decline  to  a  still  more 
feeble  glimmer,  But  if  that  is  the  price  that  must  be 


POWER  TO  LEGISLATION  191 

paid  to  set  right  the  shams  which  we  have  too  long 
endured,  let  us  not  haggle  about  it. 

Via  antiqua  tutissima.  These  proposals  are  not  put 
forward  as  an  ideal  solution  of  the  problem  of  the  re- 
lation of  the  executive  authority  to  the  legislative 
power,  but  only  as  a  remedy  for  an  admitted  evil,  if 
indeed  no  other  measures  of  correction  will  avail.  At 
least  the  solution  would  put  us  back  upon  a  basis  of 
honesty.  It  would  enable  us  to  play  the  game  openly 
and  aboveboard,  with  candor  and  self-respect,  with- 
out disguise  or  circumlocution,  like  men  who  love  the 
splendor  of  noon  and  shun  the  miasmatic  mists  of 
twilight. 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 
Renewed  books  are  subject  to  immediate  recall. 


>\D-f    I  -    c3-' 


LO 


MAV  22    J74 


BCD  CIRC  DETT         SEP  3 


NOV241974  5  !8 


BCD  cute  sen 


LD  21A-50m-ll,'62 
(D3279slO)476B 


General  Library 

University  of  California 

Berkeley 


I 


YB  08383 


LD9-20m-9,'60(B2910s4)4U 


UNIVERSITY  dF  CALIFORNIA  LIBRARY 


